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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-84

Name of organisation making submission: DR-84 Labourers' International Union of North America, Local 183

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

1) What do you understand by public interest?

Public interest belongs to the public and not to the College or its members.[1]

For the purposes of statutory regulation, the public interest can be seen as having two aspects: the specific public interest that needs to be served and protected by regulation; and the broader public interest that should not be prejudiced by regulation. [2]

1. How and what aspects of the public interest should OCOT serve

The first step in examining the concept of public interest for the purpose of this review is to determine what public interests the College is designed to serve.

The primary function of the College is self-regulation, i.e., the regulation of its members. It serves the public interest by training tradespersons and maintaining occupational standards within the certified trades.

This approach is consistent with other colleges for self-regulating professions. The focus of regulation is on members of the colleges, not persons outside the colleges.

This approach is also consistent with the history of regulation of the skilled trades in Ontario. The objective of this regulation, since the enactment of the Apprenticeship Act in 1928, has been to support the development of competence in the skilled trades.3 In general, the "public interest" to be addressed by any particular statutory body or function derives from its relationship to the purpose of the statute.[4] The public interest promoted by the College derives from the purpose of OCTAA.

OCTAA, like its predecessors TQAA and ACA, is fundamentally a training statute. The primary focus of the College should be on training workers to occupational standards and ensuring that those standards are maintained among its members, in order to promote the objectives OCTAA is designed to address.

The objectives of OCTAA can be found in three sources:

1) Armstrong and Whitaker [5] reports;
2) Hansard
3) Statutory language.

A. Armstrong and Whitaker reports

The College is the result of the recommendations of the Armstrong Report and the Whitaker Report.
Both reports emphasise the training function of the College as promoting the public interest. Both emphasise the need to attract more people to the trades, particularly marginalized or under- represented groups; and both emphasise the importance of increased training, in the expectation that increased training will improve safety, protect consumers and meet the changing needs of the economy.[6]

B. Hansard

The Government intent on OCTAA and the establishment of the College throughout the debates was consistent: more people need to enter to the trades in construction. This is a matter of raising the status of skilled tradespeople and finding other ways to attract more people to the trades, "especially youth and underrepresented groups"; and making it "easier for internationally trained workers to get certified and find work in Ontario".[7]

To that end, and consistent with the Armstrong and Whitaker reports, the Government proposed a self-regulating body, i.e., the College, rather than direct regulatory oversight.

The College was compared to other occupational self-regulating bodies existing at the time, such as the College of Physicians and Surgeons, the Law Society of Upper Canada and the Ontario College of Teachers, to be "the real point for apprenticeship training and skills training in the Province of Ontario". [8]

What the College was conspicuously not to do was to displace existing enforcement functions of the government through existing ministries including the MOL, and through other agencies:

"… I want to stress that this would not replace the role that government currently plays performing a variety of enforcement functions through the ministries of transportation, labour, and training, colleges and universities, as well as the inspections and enforcement secretariat, the Technical Standards and Safety Authority, the Electrical Safety Authority and the Workplace Safety and Insurance Board. All of those would continue in the enforcement role, and obviously the college would play a complementary and important role".[9]

C. Statute

The OCTAA does not give the OCOT unlimited powers with respect to the public interest. Rather, it provides that "The College has a duty to serve and protect the public interest in carrying out its objects and its functions under this Act" (emphasis added).[10]

The objects of the OCOT are set out in s. 11 of the OCTAA:
"1. To establish the scope of practice for trades.
2. To regulate the practice of trades.
3. To govern the members of the College.
4. To develop, establish and maintain qualifications for membership in the College.
5. To issue certificates of qualification and statements of membership to members of the College and renew, amend, suspend, cancel, revoke or reinstate those certificates and statements as appropriate.
6. To promote the practice of trades.
7.To establish apprenticeship programs and other training programs for trades including training standards, curriculum standards and examinations.
8. To maintain a public register of its members.
9. To determine appropriate journeyperson to apprentice ratios for trades subject to ratios.
10. To determine whether a trade should have compulsory certification status.
11. To receive and investigate complaints against members of the College and to deal with issues of discipline, misconduct, incompetency and incapacity.
12. To address compliance issues in respect of matters within the jurisdiction of the College.
13. To provide for the ongoing education of members of the College.
14. To work with other governments in Canada and the Minister with respect to the interprovincial standards program for apprenticeship and with respect to qualifications required for trades.
15. To conduct research in relation to trades.
16. To perform such additional functions as may be prescribed by a Lieutenant Governor’s regulation."

Other than provisions for self-governance, these objects are similar to the functions of the TQAA s. 6 and the ACA s.2 , s 5 et passim.[11]

Administrative tribunals have commented on the purpose of TQAA. It is a training statute and its purpose is distinct from that of other statutes such as the Occupational Health and Safety Act ("OHSA"), which is a health and safety statute.[12]

Similarly, the purpose of the OCTAA should not conflict with or duplicate that of the Ontario Labour Relations Act.[13]

D. Conclusion: how and what aspects of the public interest are served by the College

The College should serve the public interests that OCTAA was intended to address: training and maintenance of standards within the trades.[14] Its actions should reduce barriers to entry into the skilled trades, not increase them.

In this respect it is instructive to consider Armstrong's view of how the College would promote health and safety: health and safety is related to training, which is promoted by incidence of registration; it is not related to prohibitions on the performance of functions without a Certificate of Qualification ("CoQ")[15] and it is not related to whether or not trades are compulsory or voluntary.[16] In other words, occupational health and safety is promoted by attracting workers to registration, and not by enforcing prohibitions against non-members.

These purposes of OCTAA may be well served by the maintenance of standards among voluntary trades rather than the reclassification of trades as compulsory.[17] Gomez notes that the term compulsory certification refers "to the granting of the exclusive right-to-practice" of a trade (sometimes known as occupational licensing) whereas voluntary certification grants "the exclusive right-to-title in that only those with the voluntary certification can use that title but others can practice the trade" (sometimes known as occupational certification), giving Certified Public Accountants as an example of the latter.[18]

Voluntary certification where occupational standards are properly maintained addresses the purposes of OCTAA in developing a skilled labour market:

"certification may provide many of the same benefits as licensing without the cost of restricting the supply of practitioners or limiting choice for consumers…. if a signal of quality is important, certification is a better way of accomplishing the goal than occupational licensing.”[19]

This "signalling" function of voluntary certification – i.e., right-to-title – enhances the efficiency of the labour market "when occupational standards reliably communicate both the core of an employer’s needs and the core of a worker’s capabilities".[20] Gomez notes the efficacy of voluntary certification in protecting consumers and employers when information is easy to acquire through the internet [21]

2. Where is OCOT interference contrary to the public interest?

OCOT is not designed to deal with certain aspects of the public interest and to the extent it has the effect of displacing existing protections, it is contrary to the public interest.

The conflation of the occupational standards required to promote competency in trades and exclusive jurisdiction is not in the public interest. Rather:

"The public has an interest in occupational standards that are economically valid and which are drafted to achieve competency goals and no other goals. Occupational standards are economically valid when they genuinely reflect prevailing needs and practices in industry and not the aspirations of proponents to claim or restrict the performance of particular kinds of work."[22]

A. Other protections of the public interest exist

There are other judicial and regulatory regimes designed to address public interest in areas including occupational health and safety, public safety, consumer protection, and environmental protection. Given the incentives incumbents have to increase the stringency of regulatory requirements at a cost to the general public (discussed below), it is important to recognize that other protections exist.[23] A review panel commented on one important means of protecting occupational health and safety by rejecting the applicant's argument that the primary agent responsible for health and safety of workers and public is the MOL:

"We disagree. The primary mechanism for ensuring the health and safety of workers is the workplace parties themselves, as contemplated by the internal responsibility system of the Occupational Health and Safety Act"[24]

Existing enforcement of COQ requirements to protect specific public interests
Enforcement mechanisms already exist outside OCTAA where there are specific public interest concerns in ensuring that work is performed by persons who hold certifications of qualification. MOL inspectors appointed under the Occupational Health and Safety Act enforce COQ requirements for construction workers under several different Regulations.[25]

Environmental Protection
Environmental issues related to construction are addressed by the Environmental Protection Act ("EPA"), which requires builders of large projects to undertake waste audits and implement waste reduction plans during the course of construction. In addition, in some circumstances other environmental protection legislation may apply to construction projects, including the Environmental Assessment Act, the Clean Water Act; the Nutrient Management Act, the Ontario Water Resources Act , the Lakes and Rivers Improvement Act and the Provincial Parks and Conservation Reserves Act.[26]

Consumer Protection
Consumer protection related to construction in Ontario is addressed by a number of statutes. The Consumer Protection Act ("CPA") provides consumers of goods and services the protection of a cooling-off period and the ability to cancel a contract in the face of unfair business practices. Unfair business practices include misrepresentations about licensing and accreditation, false safety certification or the quality/grade of a product. It applies to construction contracts, estimates and false representations about the quality of goods.

The Construction Lien Act allows consumers to withhold a percentage of payments to contractors for a period of 45 days, giving them time to inspect/verify the quality of construction. This holdback also protects the consumer in the event subcontractors and workers on the project have not been paid. The Ontario New Home Warranties Plan Act protects consumers that have bought new homes from construction defects and from the failure of a contractor to complete the home, among other issues.

Public Safety Protection.
Public safety issues associated with construction are addressed by legislation including the Electricity Act, which establishes the Electrical Safety Authority to regulate electrical product safety, ensures compliance with the Electrical Safety Code and licenses electrical contractors and master electricians, and to investigate injuries and fatalities related to electrical safety.

Similarly, the Technical Standards and Safety Act, establishes the Technical Standards & Safety Authority ("TSSA"), to enforce the Act, to license and certify training institutions, and to inspect sites and equipment for compliance with the regulations. The TSSA has jurisdiction over work relating to, e.g., boiler and pressure vessels, elevating devices, and fuels.

B. Other public interests should not be harmed by the College

The College should be careful not to take actions that harm important public interests. These include freedom of association, including the right to a free choice of union representation [27]; economic interests, including the ability to introduce technological changes and new methods of performing work and consumer choice. To do so would be contrary to the purposes of the College as described above.

In particular, OCOT should not become a vehicle for addressing labour relations issues such as trade union jurisdiction. This is consistent with Armstrong's view (at paras. 175-176):

"175. These two issues – training, on the one hand, and union jurisdictional disputes on the other – have become intertwined. This is illustrated in the jurisprudence of the Ontario Labour Relations Board, extending now over some considerable period of time. I wish to make it abundantly clear that training legislation should have no impact on jurisdictional claims. The Ontario Labour Relations Board has correctly recognized this principle in its case law. …

"176. In recent years, following the passage of Regulation 572/99 under the Ontario Health and Safety Act, the tendency of some trade unions to pursue jurisdictional claims before the Ontario Labour Relations Board has intensified. For that reason, it is all the more important to stipulate, by statute, that neither training statutes, nor related provisions in other legislation or regulations, such as the OHSA and Regulation 572/99, can or should be used to support jurisdictional claims under the Labour Relations Act."

The misuse of the College to advance jurisdictional claims does not merely affect trade unions and their members; it has an impact on employers and the economy generally. When a union associated with a certified trade and its specialty contractor bargaining partners bring in compulsory certification - and control the Training Delivery Agent ("TDA"; as in the Sprinkler classification review case[28]) - the effect is to create a monopoly for those contractors. This is unlike bargaining subcontracting protection because a) it is not bargained but imposed by regulatory fiat; and b) it extends the monopoly to the province regardless of whether the union has bargaining rights with contractors throughout the province or with the 'upstream' contractors providing the work.

C. The College is the wrong tool to protect public interest through the regulation of non-members

The pattern of compulsory certification in construction varies across jurisdictions in Canada, from 6 trades in British Columbia to 54 in Quebec. The nature of trades that require compulsory certification vary as well. This suggests that compulsory certification is not required to protect significant public interests such as public health, health and safety, labour shortages or consumer protection.[29]

One explanation for this variance in compulsory certification across jurisdictions in Canada is that regulation is used for the benefit of the profession (or trade), not the public. Regulation of occupations is almost invariably upwards, driven by members of the occupations and the success of their efforts appears to have more to do with the lobbying power of interest groups interested in licencing occupations than the protection of public interest.[30]

This is of particular concern in the College's impact on the public interest, because not only does the College self-regulate, it has the capacity to regulate others through enforcement by Inspectors appointed by the Registrar.[31]

Quality of services to consumers
Compulsory certification or right-to-practice occupational licensing has the effect of raising prices without necessarily improving the quality of services for consumers.[32]

Higher prices from the regulations (documented previously) means that some consumers may not buy the service, effectively getting zero quality:[33]

"Carroll and Gaston (1981) examine the effect of the licensing of dentists, electricians, plumbers, real estate agents, optometrists and veterinarians in the United States. They find that licensing did increase the quality of the service, but the restrictions on entry decreased the number of practitioners. As a result some clients did not receive any service. …. There can be a trade-off between higher quality for some, and zero quality for others."[34]

Others may substitute into unregulated or do-it-yourself services of lower quality.[35]

Moreover, "regulations designed to protect the public from low quality practitioners may have the unintended consequence of fostering lower quality services". [36] One reason for this is the protection the regulations give to licensed services from competition, and the lack of knowledge of consumers. For example, a study of TV repair services found "the licenced services were more likely to give fraudulent recommendations for repairs compared to those that were not licensed."[37] Studies of quality of licenced (compulsory) versus unlicensed practitioners have found that the quality of service is not improved by increased regulation or licencing among florists, teachers, dental services; persons practicing occupational therapy, practical and vocational therapy and clinical psychology; and real estate practitioners.[38]

Occupational and public health and safety
Compulsory certification carries costs without evidence of benefits in areas of health and safety:

"At the higher end of the regulatory spectrum, the compulsory certification of Plumbers and Electricians in the construction industry was generally associated with an increase in their pay of around 6 to 8%. Additional local requirements for electricians are associated with an additional increase of around 12% in their pay. This highlights that the more stringent the regulation, the higher the pay. There is little evidence of any effect on injury rates or workplace safety."[39]

This is not surprising, given the existing protections for occupational health and safety which address all workers, not just those in the compulsory trades.[40]

The proper role of the College with respect to public safety is to incorporate relevant knowledge of existing legislation and regulatory agencies into occupational standards:

"Competence requires that work be undertaken in a manner that is consistent with public safety and safety. It is not, however, the responsibility of the College of Trades to define the meaning of public safety. That function is carried out by specialized bodies or authorities with the appropriate expertise – an expertise that the College lacks. The College’s role is to ensure that the occupational competencies that are under its purview are consistent with the role of that occupation in relation to public safety as those responsibilities have been defined by the relevant authority. In the main, this means that occupational standards should indicate the expected level of knowledge of the relevant standards that pertain to public safety. These standards would include, depending on the trade, the Building Code, the Fire Code, standards established by the Electrical Safety Authority or the Technical Standards and Safety Authority, the Canadian Standards Association, etc. The relevant standards and the appropriate level of knowledge of those standards will vary by trade."[41]

In Ontario's construction industry, tasks associated with protection of significant aspects of public safety and occupational health and safety are assigned to members of Local 183. Typically, labourers are responsible for site safety: signage, traffic control, safety barriers, hoarding and general clean-up. Labourers are trained in and responsible for occupational health and safety matters such as fall arrest, scaffolding and confined space work.[42]

Even if the College wanted to regulate all construction workers in the interests of public safety and occupational health and safety, it lacks the resources, the expertise and the jurisdiction to do so.

D. Rents without costs: Grand-parenting effect and impact on consumers

The disparity between increased costs as a result of licencing and a lack of corresponding benefits is exacerbated by the common practice of "grand-parenting", i.e., exempting incumbents from new occupational standards imposed by licencing requirements.

"Since incumbents invariably exempt themselves from any new additional requirements they impose on potential new entrants, they garner the rents without having to bear the cost of the new requirements. In that vein, they are certainly less prone to question the viability of any new requirements they impose. Prohibiting the exempting of incumbents from new additional requirements (i.e.,prohibiting grand-parenting) would invariably make them question the need for the new requirements if the incumbents also had to meet the new requirements."[43]

A study on real estate licencing found that additional requirements had no effect on the quality of service as measured by complaints to the licensing board; reduced the availability and choice of services for clients by reducing the number of licensed agents between 39-58 percent; but increased the incomes of incumbent practitioners by 11-17 percent – without cost to the incumbents because they were grand-parented from having to meet the new requirements.[44]

The same practice inhibits technological change:

"If technological change does occur in the trade or profession and it requires new procedures to practice the trade, the cost of learning these new procedures can be placed on potential new entrants through additional training or other requirements. Incumbents in the trade are typically exempted (grand-parented) from having to learn these new requirements. This means that they are not skilled at using the new technology and hence less skilled in practicing their trade or profession. This in turn will increase their resistance to technological change."[45]

An obvious implication is that grand-parenting undermines the premise of apprenticeship: the grand-parented incumbents lack the skills to train apprentices in new requirements or new technologies.

It further encourages incumbents to create barriers to entry into trade, because they do not bear the costs and they get the benefits, leading to a "ratcheting up" of regulation that does not serve public interests:

"The added cost of acquiring the additional credentials or the exclusive-right-to-practice deters new entry to the trade, enhancing the pay and job security of incumbents. Since incumbents invariably are exempt from having to meet the new requirements through grand-parenting clauses, they get the benefit of higher pay and job security without bearing the cost."[46]

E. Impact on freedom of association and employee choice

The College is designed to regulate trades and not trade unions. Nevertheless, there is the potential for trade unions to use (or abuse) provisions of the OCTAA for the purpose of gaining exclusive jurisdiction for their members and monopolies for their bargaining partners.[47]

This potential is exacerbated by a number of structural features of the College and the apprenticeship system:

- Because the College is intended to be self-funding, it has an incentive to expand its membership and therefore its revenues. This gives it an incentive to increase the number of compulsory trades and to interpret prohibitions on practice by non-members in a broad manner for enforcement purposes, regardless of whether those actions serve the public interest.

- The College's governance and decision making structures are premised on opposition of employee and employer interests. They do not take into account alignments of interests between trade unions and their bargaining partners.[48]

- Trade unions whose training centres are ministry-approved TDAs benefit from compulsory status, because membership in the trade union becomes a means of accessing membership into the trade. [49]

- When trade unions and their employer bargaining partners use OCTAA prohibitions on practice and College enforcement mechanisms to prevent members of other trade unions, or contractors bound to other trade unions, from performing work, it has a coercive effect on union membership and collective bargaining relationships.

As with any law, the OCTAA must be consistent with the Canada Charter of Rights and Freedoms. Moreover, legislation should be interpreted in accordance with the fundamental values underlying the Charter. Section 2(d) of the Charter guarantees freedom of association. The evolution of the jurisprudence under s.2(d) has culminated in the New Trilogy in which the Supreme Court of Canada has given new life to freedom of association. One case of the New Trilogy is particularly relevant to the application, administration and interpretation of the Act. As a government body exercising statutory powers, the College is bound by the Charter in light of section 32 which makes it the supreme law of Canada.

In MPAO, 2015 SCC 1, dealing with the right of RCMP members to choose their own independent union, the Supreme Court of Canada confirmed that s.2(d) of the Charter of Rights and Freedoms provides employees with a degree of choice sufficient to enable them to determine their collective interests and meaningfully pursue them. In this regard, a crucial choice made by employees is the selection of the trade union they believe will best represent their individual and collective interests in the workplace. Since work plays such a fundamental role in one's life, the Court believed that constitutional protection is required in respect of the decision to choose a trade union.

However, as with any other fundamental freedom, the right to choose your own trade union is not absolute. The Court stated that the degree of choice required by the Charter for collective bargaining purposes is one that enables employees to have effective input into the selection of their collective goals to be advanced by their trade union.

In respect of the fundamental nature of employee choice, the Court observed that employees choose representatives on the assumption that their voice will be conveyed to the employer by people they choose (at para. 87). Interestingly, in rendering its decision, the Court relied upon an earlier dissent of Cory, J. in PIPSC and Northwest Territories ([1990], 2 SCR, 367) where he stated:

"Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee's life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer. If collective bargaining is to function properly, employees must have confidence in their representative. That confidence will be lost if the individual employee is unable to choose the association." [Emphasis added; p. 380.]

In PIPSC, Cory, J. went on to say:

"The right of the individual employee to join the association of his or her choice seems to me to be of fundamental importance. It not only enables the individual to better participate in the democratic process by acting through a group, but it permits the individuals to act in concert to seek fairness in wage settlements and working conditions. At the very least, the forming or changing of an entity to undertake collective bargaining is entitled to the protection of the Charter right of freedom of association." [emphasis added]

In Lavigne, Wilson, J. borrowed from the European Human Rights Commission and agreed that "a worker must be able to choose the union which in his opinion, best protects his interests…" ([1991] 2 SCR, 211 at para.82).

International law, as well, is of assistance in determining the scope of the right to choose a bargaining agent. The Supreme Court of Canada has clearly ruled that international law should be relied upon in determining the scope of our fundamental freedoms under the Charter. International Labour Organization ("ILO") Convention 87 provides that employees have the right to form or join organizations of their own choosing (Article 2). Similar rights are recognized in Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 2 of the International Covenant on Civil and Political Rights. Canada is bound by these international conventions and covenants. The Supreme Court of Canada has held that our Charter rights should at a minimum be equal to the protection provided in international human rights law.

The jurisprudence of the ILO's Committee on Freedom of Association (CFA) indicates that the free exercise of the right to establish and join unions implies the free choice of the structure and composition of the unions as well as individual representatives.

Because a worker must be able to choose a trade union of his or her choice, the CFA has ruled that favouring or discriminating against particular unions constitutes an impermissible interference with freedom of association in that it may impact on employee choice and, therefore, undermine the democratic process and the social and economic value of the union (ILO Digest, para. 339, 466-67).

Apart from constitutional law and binding international law, the legislative policy of Ontario is that a worker has the right to join and belong to a trade union of his or her choosing. Section 5 of the Labour Relations Act (LRA) provides:

"Every person is free to join a trade union of the person's own choice and to participate in its lawful activities".

As well, the LRA does not, in any way, favour one union over another in respect of the representation of employees in light of this fundamental right of employee choice.

It is important to note that a trade union has constitutional associational rights. In MPAO, the Supreme Court clearly ruled that the collective dimension of s.2(d) in the labour context gives trade unions s.2(d) protection in respect of their collective activities in representing employees:

"[62] Section 2(d), we have seen, protects associational activity for the purpose of securing the individual against state-enforced isolation and empowering individuals to achieve collectively what they could not achieve individually. It follows that the associational rights protected by s.2(d) are not merely a bundle of individual rights, but collective rights that inhere in associations. L'Hereux-Dubé J. put it well in Advance Cutting:

In society, there is an element of synergy when individual's interact. The mere addition of individual goals will not suffice. Society is more than the sum of its parts. Put another way, a row of taxis do not a bus make. An Arithmetic approach to Charter rights fails to encompass the aspirations imbedded in it. [para. 66]

[63] It has been suggested that collective rights should not be recognized because they are inconsistent with the Charter's emphasis on individuals rights, and because this would give groups greater rights than individuals. In our view, neither criticism is well founded."

If we apply this analysis to the Act and the College, there are clear legal problems if the Act is enforced in a manner in which SOPs exclude uncertified Local 183 workers from performing work within the SOPs. First, Local 183 members will be prohibited from performing work that they have been performing because of the union they have freely chosen to represent them. Secondly, their freely chosen trade union, Local 183, will lose the right to organize workers performing this work, even though they have successfully organized thousands of these workers since it was formed. The individual right of workers to freely select a trade union of their choosing and the right of the collective to organize these workers by the College will be infringed if the Act is applied in this manner. Moreover, such enforcement would favour another union over Local 183 which is contrary to our constitutional law and legislative policy. In short, the College would be acting contrary to s.2(d) of the Charter which it is not legally permitted to do. Accordingly, the Act cannot be applied and enforced in this manner.

Finally, it may be argued that the Act was never intended to interfere with the right of workers to select a union of their choice or the collective right of a union to organize workers in a trade that they have organized and represented for decades. However, even if the purpose of the Act does not interfere with these fundamental rights, the effect of the Act does so interfere if it is enforced in the manner described above. If the effect of a law interferes with constitutional rights, the law is unconstitutional regardless of the legislative purpose or the intent of the legislature.

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NOTES
[1] Cf. Alderson & Montesano, 2003 quoted in Review Guidelines at p. 10: "The interest belongs to the public not the profession".

[2] Tim Armstrong in his Report on Compulsory Certification dated April 28, 2008 (the "Armstrong Report") acknowledges the potential for increased occupational regulation to have a negative effect on public interest: "The implication from the instructions contained in my mandate appears to me to be that any change from the existing status of individual trades, to be supported, should result in net positive results for health and safety, registration and completion rates and consumer protection, without having significantly negative or other unjustifiable economic impacts for stakeholders or for the economy at large" (at p. 10).

[3] J. O'Grady expert report ("O'Grady") at pp. 2-3 attached hereto as Appendix "A".

[4] See e.g. R. v. Farinacci, 1993 CanLII 3385 [ONCA]: The term "public interest" must be measured against the components of that right in issue (in that case a statutory right to bail rather than a Charter s. 11 right), in a statutory context in which the safety of the public has already been taken into account. (para. 35); Johnson v British Columbia Securities Commission et al, 2001 BCCA 597 at para. 35: The phrase "public interest" invites the question "in relation to what?" The Court of Appeal dismissed the argument that it applying securities legislation it should follow the SCC's decision in R. v Morales, in which the SCC struck out the words "in the public interest" from a provision of the Criminal Code on the grounds of vagueness. The Court held that "public interest" needed to considered not in the context of the Criminal Code but than it is when considered in connection with the Securities Act. The objects and purposes of the latter are much narrower and more clearly definable and they serve to circumscribe the legal debate surrounding public interest. With respect to self-regulatory bodies, see College of Physicians and Surgeons of Ontario v Metcalf, [2009] 98 OR (3d) 301 (ONSC - Div Ct) which addressed the distinction between the public interest served by the College and that the interest protected by the Attorney General in the administration of criminal justice (at paras. 57-59). See also CETAMS v OSC, [2001] 2 SCR 132: The public interest jurisdiction of the OSC is not unlimited. Its precise nature and scope should be assessed by considering relevant statutory provisions in context. and in particular in the context of the purpose of the OSC's enabling statute (at para. 41).

[5] Report of the Advisor to the Minister of Training, Colleges and Universities dated May 1, 2009 (the "Whitaker Report").

[6] Armstrong describes his overall objective as "ensuring that the apprenticeship and certification system 'continues to meet proper safety standards, provides value to consumers, and serves to meet the needs of the province’s growing economy'" (at p. 104). He was asked to assess the expansion of compulsory certification "with particular reference to the ramifications for health and safety, the registration of new apprentices, the rates of completion, consumer protection, economic impact and any other factor(s) that I may consider to be relevant" (at p. 1). His summary of findings begins with evaluation of registration and completion rates, i.e., the training functions (at pp. 1-2). His findings on the impact of expanding compulsory certification on health and safety are based on training (at p. 2) and training factors of increased registration and completion rates for apprentices (pp 68, 93, 96).

The Whitaker report similarly focusses on training: its terms of reference were "to develop a recommended governance and mandate framework for the College of Trades, … 'which will contribute to the modernization of the apprenticeship and certification system to make it more responsive to economic needs, enhance the quality of apprenticeship training and expand the system'”. Cf. the description of Apprenticeship and Certification at pp. 12 -13 of the Whitaker report.

Other than governance issues, the Whitaker report establishes the following "Key Organizing Principles" for the College: "8. The College of Trades should redress the under-representation in the trades of women, francophone, visible minorities, first nations/aboriginals and persons with disabilities; 9. The College of Trades should be responsible for addressing current and future skilled trades shortages through timely and thorough advance planning; 10. The College of Trades should be accountable to the public and government for the conduct of its membership and the quality of its work; 11. The College of Trades should work with government to ensure the cultivation and development of the Trades and the protection of the public interest" (at p. 54). In addition, the report recommends finding ways of bringing more young workers into the trades (at p. 58). Underlying these recommendations and organizing principles is the need to make Ontario economically competitive on a global scale (at pp. 6, 10, 55, 58 and 80 et passim.)

[7] Hansard¸ Hon. John Milloy, First Reading, May 13, 2009. Similarly, "we need to make sure we have more and more people going into the skilled trades in all areas but most particularly in construction"; Hansard, Hon. John Milloy, Second Reading Debate, June 1, 2009.

[8] Hansard, Hon. John Milloy, Third Reading, October 27, 2009

[9] Hansard, Hon. John Milloy, Second Reading Debate, June 1, 2009.

[10] OCTAA s. 10

[11] See Appendix "B": Concordance of Objectives and Functions of the Ontario College of Trades and Apprenticeship with the Trades Qualification and Apprenticeship Act and Apprenticeship and Certification Act, 1998.

[12] See: HS Donald Construction Ltd. 2005 CanLII 40199 (OLRB), appeal of Officer's order under s. 61 of the OSHA

"26. The Ministry argues that OHSA is and always has been concerned with safety in terms of skills and qualifications (specifically with regard to the TQAA). Clearly, there is some overlap between the necessary qualifications to perform the work and the ability to perform it safely. However, this argument must also be seen in the context of the purpose of the two statutes. The purpose of the TQAA is that of a training statute. The purpose of OHSA is that of a health and safety statute. Sections 25 and 26 of OHSA declare what an employer is to do with respect to a worksite or its workers, but interestingly, the only section dealing with the competency of an employee is section 25(2)(c), which requires an employer “when appointing a supervisor, to appoint a competent person”. It does not explicitly require the employer to employ or appoint “competent workers” in the performance of the work, nor does it define the necessary level of skills or competency on the part of workers with respect to any other statute or any formal level of training or certification.

"27. The Ministry argued that there are safety considerations under the TQAA that have been incorporated into OHSA. Counsel pointed to two instances the OHSA Construction Regulation that require a Certificate of Qualification under the TQAA as a pre-condition for the performance of certain work: section 150(1) which deals with hoisting engineers and section 191(1) dealing with electricians. Significantly, there is no such requirement under the OHSA or any Regulation thereunder dealing with plumbers.

"28. Before the promulgation of O. Reg. 572/99, the OHSA governed the safety of employees on construction sites in Ontario. The OHSA Construction Regulation is amended frequently, but at no time did the drafter of the Regulations feel it necessary, as a health and safety matter, to refer to the TQAA other than the two references noted above (both of which were promulgated in 1994). That is, the Act never contemplated certification under the TQAA to be a health and safety issue, except in those two limited circumstances. …

"One Final Comment
"35. This decision may be a frustrating one for Inspectors under OHSA. It is entirely logical that an Inspector would apply his or her own analysis to a worksite based on the kind of assessment and reasoning that he or she applies to construction projects under the OHSA Construction Regulation. Nothing in this decision should dissuade him or her from considering the application of the OHSA Construction Regulation to the work being performed on any construction site, particularly at the municipal sewer line where the trench is likely to exceed 1.2 meters in depth. The application of the OHSA Regulation to this work is vitally important to the health and safety of workers and employers on job sites in Ontario, including the pipe layers who lay pipes for sanitary or storm sewers. In enforcing section 3 of O. Reg. 572/99, however, the Inspector is in fact enforcing the requirements of a different statute, and must look to the TQAA for the content and meaning of the terms, rather than to automatically import the same or similar terms from the OHSA and Regulations enacted under that statute."

[13] See HM Construction Ltd, 2014 CanLII 39508 (OLRB):

"53 Both unions make reference to the trade of drywall taper under the regime created now by the Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22 (“TQA”). That is a statute that regulates and encourages training of skilled workers in many industries and may at some point regulate skill levels. It applies to all persons who practice a trade, regardless of the union that may represent them, or who are not represented by any union. It has nothing to do with bargaining rights."

[14] Cf "public interest" in health care: Regulated Health Professions Act, 1991 ("public interest" is not found in eg. the Medicine Act which continues CPSO)

"Duty of Minister
"It is the duty of the Minister to ensure that the health professions are regulated and co-ordinated in the public interest, that appropriate standards of practice are developed and maintained and that individuals have access to services provided by the health professions of their choice and that they are treated with sensitivity and respect in their dealings with health professionals, the Colleges and the Board. 1991, c. 18, s. 3. [s. 3]

Cf. O'Grady at p. 3: "the most important contribution of the College of Trades is the development and maintenance of occupational standards [emphasis in the original]".

[15] Armstrong states that there is no data establishing that prohibitions on performing electrical work with or without a COQ make a difference to health and safety. Re: O.Reg. 213/91 under the OHSA, he comments at para. 120, "It is arguable that the specificity with which they are dealt, and the fact that any contravention is a statutory offence, should positively impact health and safety results. But do the facts bear this out? And if the results are better than in other non-compulsory trades, are those results because of better training?"

[16] Armstrong para. 122: "The key issue on the health and safety impact question turns, then, on whatever empirical evidence exists to support – or refute – the proposition that those trained under a compulsory/restricted regimen have superior health and safety records to those trained under voluntary/unrestricted systems. I have searched in vain for data that would enable me to provide a reliable, supportable response to this key question."

[17] See R. Gomez expert report ("Gomez"; attached hereto as Appendix "C") at pp. 36-37 and the studies cited therein.

[18] Gomez at p. 1; cf. O'Grady at p. 2: " At one end of the spectrum, there is restricted title which limits the use of an occupational designation to persons who are certified by a designated entity. At the other end of the spectrum are licensed occupations where both the use of title and the practice of a specified scope of work are limited to persons who are certified".

[19] Kleiner 2006 at p. 7 quoted in Gomez at p. 37.

[20] O'Grady at p. 3: "the efficiency of the labour market is enhanced when occupational standards reliably communicate both the core of an employer’s needs and the core of a worker’s capabilities."

[21] Gomez at p. 37; this is consistent with the College's use of a Public Register to ensure adherence to standards among its members.

[22] O'Grady at p. 4.

[23] See Gomez at p. 24: "As stated by Beatty and Gunderson (1978, p. 48): “systems of public inspection, standards legislation, public codes of ethics for salaried employees and schemes of civil liability and consumer protection legislation properly applied can be expected to safeguard the public’s safety and security.” This view has also been expressed by the earlier Dymond (1973, p. 170-171) task force as a viable alternative to the compulsory certification of skilled trades in Ontario." He further quotes Tuohy and Wolfson (1978) on " judicial instruments, such as the definition of civil liability, and fiscal instruments such as subsidies for training or service, which may be preferable to or supplementary to regulation” in protecting public interest.

Similarly, O'Grady notes the protection of public safety through standards including "the Building Code, the Fire Code, standards established by the Electrical Safety Authority or the Technical Standards and Safety Authority, the Canadian Standards Association, etc." (at p. 4) and the onus on employers found in the Occupational Health and Safety Act (at p. 5).

[24] Review Panel Decision (Heat and Frost Insulator) RR9-2012, April 18, 2013 at p. 6

[25] See "Existing Enforcement Mechanism for Compulsory Trades in Construction"; Appendix "D".

[26] See "Environmental Protection Legislation re: Construction"; Appendix "E".

[27] In this context, it is important to remember that the certified trades are not trade unions; and that the College does not confer collective bargaining rights. Rather, to the extent that the College has the ability to regulate the actions of non-members, it is a means by which groups of employees and employers use powers granted by the state through OCTAA to prevent non-members from working or employing non-members. See below with respect to freedom of association.

[28] Review Panel in the Trade Classification Review Sprinkler and Fire Protection Installer decision TCR2013-1 SFPI

[29] Gomez at p. 30.

[30] Gomez, "Tendency to Ratchet Up the Regulatory Ladder" and "Inconsistent Patterns of Regulation", pp. 33 – 36, and the studies cited therein.

[31] The structure of the College and the built-in potential for conflict of interest is discussed under Questions 4 ("Is the College currently protecting the public interest") and 5 ("How should the College advance the public interest"), below.

[32] Gomez at pp. 19-22.

[33] Gomez at p. 20; cf Gomez at p 22.

[34] Ibid at p. 22

[35] Ibid at pp. 20-21

[36] Ibid at p. 21.

[37] Phelan (1974) cited in Gomez at p. 21.

[38] See Gomez pp. 21-22 and the studies cited therein.

[39] Gomez at p. 29, referring to Kleiner (2013).

[40] There is no demonstrated correlation between the need for occupational health and safety protection and workers in compulsory trades. Arguably, unskilled workers on construction sites are most in need of occupational health and safety protection: they tend to be the most vulnerable and they are often put into dangerous situations, e.g., the non-unionized restoration workers employed by Metron Construction who were killed when scaffolding collapsed in December 2009.

[41] O'Grady at p. 4.

[42] See Question 6, below, regarding health and safety training at Local 183's Training Centre.

[43] Gomez at p. 17.

[44] Powell and Vorotnikov (2012) described in Gomez at p. 18.

[45] Gomez at p. 27.

[46] Ibid at p. 34.

[47] C. Wiseman and L. Richmond, "Building on a Stable Foundation: Lessons Learned from the Ontario Labour Relations Board's Approach to Compulsory Trade Enforcement" ("Wiseman and Richmond") document some of the many examples of trade unions using compulsory certification of their members to advance jurisdictional claims (attached hereto as Appendix "F").

[48] This is discussed in more detail under Question 20, below.

[49] See the discussion of Trades Boards under Question 20, below: all of the employee members of the Carpenters Trade Board, who passed the resolution to seek compulsory status, were members of the United Brotherhood of Carpenters and Joiners of America.


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

As noted above, the interest the legislation is designed to protect belongs to the public not the profession[50]

The public includes:

- workers who are not members of the College, who have an interest in continued employment and freedom of association;

- trade unions, which also have a constitutionally protected associational interest;

- employers and employer associations who have developed efficient and competitive methods of work assignment;

- consumers;

- all citizens in Ontario who benefits from a thriving construction industry.

The public includes those groups specifically identified in the Armstrong and Whitaker Reports and in legislative debates over the bill that established the College as marginalized or underrepresented in the skilled trades. These are the groups for whom the Whitaker Report recommended removing barriers to access: young people, women, francophone, first nations, visible minorities, disabled and foreign trained workers.[51]

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NOTES
[50] Alderson & Montesano, 2003 quoted in Dean guidelines at p. 10

[51] Whitaker report at p. 59.


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

Generally, the College needs to focus on its statutory purposes and avoid interfering with other institutions that protect the public interest. If opposing interests of different segments of the public lie outside the purpose of the College – e.g. jurisdictional disputes between trade unions, enforcement of occupational health and safety legislation – it should not act in a way that interferes with institutions or statutory regimes designed to deal with opposing or conflicting interests of different segments of the public in those areas.

More specifically, OCOT processes that affect different segments of the public with opposing interests need to have stakeholder input. OCOT decision makers need to be impartial and the appointments process needs to be structured so as to avoid conflict of interest. The College processes should acknowledge the existence of incentives in occupational regulation for parties to "game" the system for their own ends:

"Job classification systems, union jurisdictions and ‘work rules’ may introduce boundaries, but these boundaries are products of human resources management or labour relations systems. … [T]hose with particular economic interests may try to draft some occupation standards, while opposing others so that they can ‘game’ the system to create a claim over a particular type of work.

… If the determination of occupational standards is left wholly or substantially in the hands of employers and workers attached to a particular trade, there is a significant risk that the resulting standards will subordinate the competency goal to supporting claims over particular kinds of work. The College’s system for developing and updating occupational standards must incorporate checks and balances as well as a credible public interest filter." [52]

The current appointments process does not even contemplate the different interests of competing trade unions or employer groups.[53] With respect to labour relations and economic impacts, competing interests are not necessarily union-employer. Unions seeking compulsory status for their members and their employer bargaining partners share an interest in eliminating the competition. Labour costs may or may not go up – the employers are already unionized in this scenario – but if they do, the employers still benefit because the elimination of competition allows them to increase the prices to consumers.[54]

The College should adopt the approach of considering whether adequate alternatives exist when it makes decisions where affected groups have opposing interests. When a decision will affect the rights of competing groups, the College should always ask whether there are alternatives to address the interest of one group without impairing that of another.

Specific recommendations with respect to the classification review process are set out in Questions 20-24, below.

Specific recommendations with respect to enforcement, i.e., regulation by the College of non-members, are set out in Question 5, below.

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NOTES

[52] O'Grady at p 4; emphasis in the original.

[53] OCTAA s. 63(10) requires the Appointments Council to "take into the account the importance of reflecting across the governing structure of the College, (a) Ontario’s English and French linguistic duality; (b) the diversity of Ontario’s population; (c) gender balance; (d) representation from unionized and non-unionized and from large, medium and small business environments; and (e) the various geographic areas of Ontario named in a Board regulation. 2009, c. 22, s. 63 (10).

[54] The alignment of interest among unions and their employer bargaining partners is discussed more fully in Question 20, below.


4. Is the College currently protecting the public interest?

No. Instead of self-regulation of trades to maintain standards within trades, whether voluntary or compulsory, and promoting training, the College's focus appears to be the expansion by trade unions associated with certified trades of their jurisdiction, and the elimination of competition by employer associations associated with certified trades.

A. The 3-fold structure of the College: self-regulation, regulation of others and expansion of membership

The College is not currently protecting the public interest because of its structure. It is not only a self-regulating body, it also regulates non-members (through enforcement of compulsory trade provisions in OCTAA) and has the power to expand its membership through the review process. In other words, the College has the capacity to regulate both the supply of services of its members and the demand for those services.

Economic "capture" theory predicts that this is a significant concern: "those who are regulated capture the regulatory process for their own ends, even when the process is established to protect the public".[55]

Because the College is supposed to be self-funding, it not only has the capacity to regulate others and expand its membership by making trades compulsory, but it has an incentive to do so. It has a built in bias towards expanding prohibitions on non-members performing work.[56]

The use of College mechanisms to advance trade union jurisdictional claims diverts resources from enforcement in the non-unionized sector and in particular, the underground economy where enforcement is most urgently needed.[57] The results are:

- greater focus on enforcement in the unionized sector;
- disruption of established practices regarding jurisdiction;
- displacement of OLRB jurisprudence and authority re unionized trade jurisdiction;
- uncertainty and loss of flexibility for employers;
- harm to economy and Ontario's competitive position -- contrary to the interests to be promoted according to the Armstrong and Whitaker Reports;
- lack of focus on enforcement in non-unionized sector and in particular the underground economy resulting in a failure to protect consumers and workers where they need it the most;
- unjustified prohibitions on workers performing tasks within their competence; and
- loss of associational rights for workers who will no longer be able to perform their work within the union of their choice

The structure of the College in this regard is unusual, compared to other self- regulating bodies for occupational groups.[58] Colleges that focus on the regulation of their members ensure that the correct occupational standards are applied and that their members are trained in them and meet them in practice. In other words, most self-regulating bodies enforce the quality of the work.

OCOT on the other hand, in the exercise of its enforcement powers over non-members and its ability to expand the scope of prohibitions on non-members through classification review, does not consider whether occupational standards are being met in the performance of work by non-members. Rather, its focus is on whether the wrong people are doing the work.

The College's focus on who does the work rather than how the work is performed is the result of the regulatory anomaly of its unique power to appoint Inspectors to enforce OCTAA against non-members. No other statutorily empowered self-regulating occupational group in Ontario has this power.[59]

The misplaced priorities of the College are demonstrated in its Strategic Plan 2012-2015. Its highest priority is "To promote the College of Trades (the College) and build its membership". This serves the interest of the College, not the public, and has no direct connection to the objectives of OCTAA. Its lowest priority is "To attract people to skilled trades careers". Governing members of the college is a lower priority than "regulating the trades", which appears to focus on creation and enforcement of prohibitions on non-members performing work.[60] This stands in stark contrast to the responsibilities of the College as set out in the Whitaker report: 1) protection of the public interest, management of inter-jurisdictional qualifications (including Red Seal [61] management) and finding solutions for anticipated skills shortages and succession planning in response to these shortages.[62]

B. The skills shortage and concerns about equity and diversity

The College has the potential to alleviate the skills shortage through promotion of the trades and training. However, because the priorities and the built-in funding incentives of the College are to increase its membership through increasing the number of compulsory trades and enforcing prohibitions, it will have the opposite effect.
Both theoretically and empirically, compulsory certification has the effect of reducing labour supply in the compulsory trade. Compulsory certification by its very nature restricts who may practice a trade. It creates entry barriers to the trade.[63]

The economic theory can be described as follows:

"In essence compulsory certification will reduce entry into the trade, this reduction in labour supply will artificially increase wages (termed economic rents by economists) and reduce employment in the trades which will in turn foster shortages. There will be a surplus or queue of labour desiring to enter the trade because of the higher pay, but there will be fewer jobs because of the higher wages and hence higher prices of the service. Furthermore, many who cannot get the coveted jobs in compulsory trades will shift to the non-compulsory trades with that supply influx lowering the wages in those trades. As well, the artificial scarcity leads to a welfare loss to consumers. …"

… [B]asic principles of economics highlights that compulsory certification in the trades will restrict entry into the trades, reducing overall labour supply and employment in those trades, exacerbating skill shortages and creating artificially high wages and hence higher prices." [64]

These concerns are not merely theoretical, but have been demonstrated in numerous empirical studies.65 The impact is strongest on low-income individuals:

“Studies have also shown that licensing reduces employment growth and limits job opportunities, especially for low-income individuals; the additional requirements needed to earn licensure may steer these workers into lower-paying but more accessible jobs (Carpenter et al. 2012; Kleiner 2006). In fact, standard economic models imply that restrictions from occupational licensing can result in up to 2.85 million fewer jobs nationwide, with an annual cost to consumers of $203 billion.”[66]

Underrepresented groups

There are no women from the construction constituency on the OCOT Board of Governors. There are no women on the Divisional Board for construction. Of over 125 members of the construction Trades Boards, there are only two whose names indicate they are women.[67] There is nothing in the OCOT Strategic Plans referring to women. [68]

While lip service is paid to notion that the College should "advance diversity and foster a culture of inclusion"[69], there is nothing concrete in the Colleges materials as to how that is to be done.

Rather, the focus of the College on compulsory trades and enforcing prohibitions against non-members has the effect of exacerbating the underrepresentation of women, youth, aboriginal persons and others from the skilled trades:

"The negative effects of compulsory certification and licensing as outlined above are likely to disproportionately fall on groups like immigrants, Aboriginal persons, women and youth …"[70]

Reasons include discrimination because of artificial pay premiums, language and educational barriers, access to classroom and on-the-job training in the case of Aboriginal persons living in isolated communities, and workplace discrimination and harassment, "especially in many of the conventional male-dominated apprenticeship trades".[71]

Foreign trained workers

Similarly, the more barriers erected in the form of domestic qualifications to entry into the trades, the more the College will adversely affect the public interest in attracting foreign trained workers.

Local 183 represents large numbers of foreign trained workers in many sectors of the construction industry which are currently not subject to compulsory certification, e.g., residential framing, masonry, concrete forming, sewer and watermain installation. The primary skills involved do not necessarily require facility in English or French, but a one-size-fits-all apprenticeship program would create language barriers for the many skilled workers. The utilization of the existing skills of these individuals is important because the process of producing new skills is costly [72]. The reality and the perception that there are entry barriers to compulsory trades and that they are reserved for incumbents and domestic-born persons can have a negative effect on immigration. [73]

Generally, immigrants in Canada are less likely to work at regulated occupations than similarly qualified Canadian-born persons.[74] Occupational regulation impedes the entry of immigrants to jobs based on non-recognition of foreign credentials.[75]

As a result, the deleterious effect on public interest is twofold: 1) there is a loss to the Canadian labour market of the previously developed skills of foreign-trained workers and 2) immigrants to Canada have difficulties finding jobs resulting in growing poverty among recent immigrants.[76]

C. Anticipating the required skills in the future

Compulsory certification can impede the development of skills that will be required in the future. This happens because of : 1) resistance to flexibility and technological change (exacerbated by the practice of "grand-parenting"); and 2) the prominence of "cobweb cycles" – i.e., time lags between supply and demand decisions - in the construction industry.

Flexibility and technological change

Incumbents in compulsory trades have an incentive to protect their work and place restrictions against flexibility and adaptability to technological change. Where grand-parenting takes place, the cost of learning new procedures falls on new entrants to the trade: the incumbents are exempted from learning the new requirements.[77] Several studies have indicated that regulation of occupations increases tendencies towards rigidity and delays or stifles innovation.[78]

Cobweb cycles

Construction is subject to cyclical and seasonal fluctuations, and boom and bust cycles associated with mega projects. The long times-to-completion in the apprenticeship system can result in workers seeking to take advantage of temporary labour shortages by entering apprenticeship programs in order to practice compulsory trades, only to drop out or become part of an oversupply if demand has dropped off before completion. [79]

D. Inter-provincial mobility

While the Whitaker report proposed tasking the College with "management of inter-jurisdictional qualifications (including Red Seal management)",[80] compulsory certification has the opposite effect. While evidence is limited, it suggests that occupational licensing restricts mobility within a country, "and the greater the stringency of the regulations the greater the negative effect".[81]

The College requires Red Seal holders to undergo a Trade Equivalency Assessment ("TEA") which may or may not result in certification for the purposes of the College. It imposes requirements above and beyond Red Seal qualification and therefore creates another impediment to inter-provincial mobility.[82]

----------------------------------------------------------------------------------------------------------------------------------------------NOTES

[55] Gomez at p. 4; see generally the discussion of capture theory pp. 4-6.

[56] The structural biases of the College and the conflicts of interest of persons on its decision making bodies are addressed below with respect to Question 20 (the review panel process).

[57] From May 2013 to November 30, 2014, 382 Provincial Offences Notices ("tickets") were issued (http://www.collegeoftrades.ca/complaints). Based on OCOT’s Public Advisories (http://www.collegeoftrades.ca/news), there have been 24 convictions of which seven were in the construction sector, suggesting that the vast majority of ticketing is not in construction. In this light, the eleven tickets issued against a single unionized contractor, Stacey Electric (discussed in Wiseman and Richmond at paras. 74-84), indicate a disproportionate emphasis on enforcement in the unionized construction sector.

[58] See “Enforcement of Non-Members Among Regulated Professions in Ontario”, Appendix "G".

[59] Ibid

[60] OCOT Strategic Plan 2012-2015, Approved by the Board of Governors, September 26, 2012. http://www.collegeoftrades.ca/wp-content/uploads/OCOT-Strategic-Plan-2012-2015-Board-Approved-Sep-26-2012-EN.pdf . Cf p. 5 "the order of priority for implementation is reflected in the order of the objectives and the order of the strategies within each objective". The BOG objectives are consistent with the Record of Board Decisions from November 15 & 16, 2011 to February 18, 2014, which are remarkably silent on efforts to attract people to skilled trades careers.

[61] The Red Seal program is described by Service Canada as follows: "The Interprovincial Standards Red Seal Program was established to provide greater mobility for skilled workers across Canada. The Red Seal program allows qualified tradespeople to practise their trade anywhere in Canada where the trade is designated without having to write further examinations" http://www.servicecanada.gc.ca/eng/goc/apprenticeship/grants/redseal.shtml. It is incorporated into the Canadian First Ministers 1995 Agreement on Internal Trade ("AIT") as amended: http://www.ait-aci.ca/en/ait/ait_en.pdf.

[62] Whitaker Report at pp. 56-57.

[63] In some cases, the entry barriers may be both irrelevant to the trade and have an adverse effect on persons who are capable of performing the work on the basis of experience but lack linguistic or test-taking abilities; cf. O'Grady at p. 5 on the anomaly of certifying competence on the basis of multiple choice examinations.

[64] Gomez at p. 7; emphasis in the original.

[65] Gomez at pp. 9-10 cites studies on a variety of occupations, including interior designers, mortgage brokers, childcare providers and barbers. Kleiner (2013, p. 139), cited by Gomez at p. 10 notes that for electricians and plumbers in the construction industry, “the ability of a state to limit entry or impost major costs on entry through licensing would enhance the occupation’s ability to raise wages.”

[66] Kleiner 2015, p.6 cited by Gomez at p. 8.

[67] Valerie Ghatura and Sharon Smith.

[68] See: http://www.collegeoftrades.ca/wp-content/uploads/OCOT-Strategic-Plan-2012-2015-Board-Approved-Sep-26-2012-EN.pdf; http://www.collegeoftrades.ca/about/governance/strategic-plan. The 2012-2015 Strategic Plan does list as a value that "Career opportunities in the trades should be available to youth, foreign-certified journeypersons, and underrepresented groups" (at p. 3).

[69] 2014-2020 Strategic Plan, http://www.collegeoftrades.ca/about/governance/strategic-plan.

[70] Gomez at p. 25.

[71] Ibid at p. 26 and the studies cited therein.

[72] Price Waterhouse 1998 cited in Gomez at p. 15.

[73] Gomez at p. 15 and the studies cited therein.

[74] Girard and Smith (2013) cited in Gomez at p. 15.

[75] Gomez pp 15-16 and the studies cited therein.

[76] Picot et al. 2010 cited in Gomez at p. 15; Schellenberg and Maheux (2007), Allison (2008) and Bloom and Grant (2001) cited by Gomez at p. 16.

[77] Gomez at pp. 26-27. NB grand-parenting where technological change occurs and incumbents are not required to learn new technology defeats the purpose of apprenticeship, where journeypersons are expected to impart knowledge to apprentices.

[78] Gomez at p. 27 and the studies cited therein.

[79] Ibid at p. 31.

[80] Whitaker report at p. 57.

[81] Gomez at p. 14.

[82] See http://www.collegeoftrades.ca/trade-assessment. The application process goes well beyond establishing a valid Red Seal qualification, it requires a detailed work history and references ("contact persons"). See: http://www.collegeoftrades.ca/wp-content/uploads/TEA_Member_Application_June-16-2014_EN_Fillable_secured.pdf.


5. How should the College advance the public interest?

As a result of the issues described in question 4), above, the College needs safeguards against apprehended bias and conflicts of interest.[83]

The safeguards need to ensure that the focus of the College is on self-regulation of its members. Safeguards are need to ensure that the, regulation of non-members by the College is limited to what is necessary in the public interest, and subject to proper oversight.

Local 183 proposes the following plan of attack [84]: first, defining compulsory functions in the trades; second, overhauling the classification review process; and third, overhauling the enforcement process. Because enforcement is not addressed specifically by the other questions, unlike SoP review and the classification review process, it will be dealt with in some detail in this question.

A. Definition of compulsory functions in the trades

Currently, trades are defined by SoPs and made compulsory in ways which do not distinguish between tasks in SoPs and do not distinguish between the various purposes to which SoPs are put (i.e., self-regulating purposes of training and maintenance of standards, and the purpose of regulating others by enforcing right-to-practice).

The difficulty with this approach is that SoPs in the construction industry were not designed with right-to-practice in mind; and they do not reflect reality with respect to practices in the Ontario construction industry.

SoPs should exist for self-regulating functions: training and maintenance of standards. They should be based on occupational standards.[85] The current SoPs are poor in that regard. A review of SoPs is desirable for the purpose of training and right-to-title, but is a large project and not urgent.[86]

The urgent matter is determining when there should be prohibitions placed on non-members of the College performing work. This can be a much narrower question than defining or re-defining SoPs. It is a matter of determining whether there are specific functions within trades that might need to be made compulsory; i.e. the identification of tasks or occupational standards that could possibly require a prohibition on non-members performing the work.

This requires examination of the existing regulatory and enforcement framework for compulsory trades discussed under Question 1, above, under the heading "Other protections of the public interest exist" (e.g. OHSA, ,EPA, CPA, the TSSA etc.).

If in fact there are gaps in the protection of the public interest that require more prohibitions on non-members of the College from performing certain tasks, those must be identified. To the extent any such gaps exist, which is questionable, their definition is a priority because review and enforcement should not be based on the existing "kitchen-sink" SoPs where everything related to training or right-to-title may become a compulsory right-to-practice.

Pending this process of definition of compulsory tasks, there should be no classification reviews and no steps taken by the College to enforce prohibitions on non-members

B. Overhaul of classification review process

Second, the classification review process needs to be overhauled.[87]

This step is necessary before enforcement of any newly created compulsory tasks, because enforcement should not be premised on compulsory status that is the result of a flawed process.

The proposals for the classification review process are found in response to questions 20-24, below.

The proposals for SoP review are found in response to questions 8-9, below.

C. Overhaul of enforcement process for the regulation of non-members

Finally, before the College takes any further steps to enforce OCTAA prohibitions against non-members in the construction industry, the enforcement process needs to be reformed. It needs safeguards against abuse.

Other Colleges do not have their own police forces to regulate the actions of non-members. The enforcement takes place outside the Colleges.[88] Because of the OCOT system, safeguards against abuse of process and conflict of interest need to be established.[89]

The reforms to the enforcement process should include the following:

i) Appointment of Inspectors

a) MOL should hire Inspectors

The best way to avoid the structural biases inherent in the appointment of College Inspectors is to remove them from the College. The MOL already has inspectors dealing with CoQ issues in health and safety contexts and to avoid duplication of functions, OCTAA inspection should be coordinated with OSHA inspection under the aegis of the MOL.

Moreover, the MOL has expertise in the labour relations issues that arise with enforcement of compulsory trade restrictions.[90]

b) If the College continues to hire inspectors:

i) transparency

It is a poor alternative to allow the College to maintain its private police force, but if it does, there should be transparency in the appointment process for inspectors.

Currently there is none. Anecdotal evidence suggests that they are members of compulsory trades. Their c.v's/ resumes should be publically available. They should be immediately disclosed.

There should be a process to review and rescind the appointment of an Inspector on the grounds of conflict of interest. That process should be separate from the College and separate from the Appointments Council.

ii) Mandate of Inspectors

Ultimately, College-appointed Inspectors should not focus on enforcing prohibitions on work by non-members of the College. Most enforcement is already addressed by existing enforcement outside of the College, and it is likely that the definition of compulsory tasks and occupational standards described above will result in very narrow prohibitions.

Rather, they should focus on ratio enforcement. There is a pressing need for enforcement of ratios, particularly among non-union employers where there is no redress for violation of ratios through the grievance procedure.

Enforcement of ratios should be a priority because ratios are the basis of the training function of the apprenticeship system. Their enforcement is consistent with the purposes and objects of OCTAA.

iii) Policy Guidelines for Inspectors

Given the potential for abuses in the enforcement of prohibitions on non-members of the College performing work, College-appointed Inspectors should have detailed policy guidelines that address issues such as :

- recognizing jurisdictional implications in work assignments;
- regulatory exemptions;
- non-regulatory exemptions previously used by the MOL; and
- distinctions between SoPs for the self-regulatory purposes of training and maintenance of standards; and compulsory functions.

Like the Policy and Interpretation manual for the Employment Practices Branch and the Operational policy manual for the WSIB, the guidelines for Inspectors should be public.

Guidelines could include a list of functions that have been recognized by the OLRB to be shared by certified and uncertified trades, and which should not be subject to enforcement of prohibitions under OCTAA.

c) Appeal/ Review of Inspector determinations

Inspector determinations should be appealable to the OLRB, just as OHSA and ESA decisions are.

The OLRB, unlike Justices of the Peace, has expertise in specialized matters involving the interrelationship of labour and employment related statutes, and in particular, has an established jurisprudence dealing with issues of compulsory trades in the context of labour relations matters.[91] Moreover, the OLRB has developed legal tests and procedures that are appropriate for dealing with workplace disputes involving the interests of multiple parties. For example, it has a practice of deferring grievances that raise jurisdictional issues pending the resolution of multi-party jurisdictional disputes[92]-- a practice that could be applied to appeals of inspector determinations, where appropriate.
Finally, the OLRB has mediation facilities that may resolve or at least streamline appeals.

The appeal process could be modelled on the process set out in OHSA s 61.(1) for the appeal of Inspector's order.[93]

Trade unions whose members are affected by an inspector's determination should have standing, as should employers whose employees are affected.

The appeal should be a de novo review of the inspector's determination.

d) Stay

Enforcement decisions pertaining to OCTAA s. 2 and s. 4, i.e. prohibitions on practice, have a draconian effect of prohibiting non-members of the College from working and employers from assigning work to them. Unless there is a safety concern that would be sufficient to trigger an order under OHSA or associated regulations, such decisions should be subject to an automatic stay if an appeal is filed.[94]

In particular, enforcement decisions involving trade union jurisdictional issues should be stayed pending review by the OLRB (again, subject to safety issues), in order to prevent front-line enforcement from becoming a de facto determination of work assignments. An employer faced with multiple tickets for using members of one trade union to perform work instead of apprentices belonging to another trade union will have no choice but to reassign the work.
Note that if there is an occupational health and safety issue, it is up to the MOL to enforce through OHSA, and OCOT should not become a new mechanism to duplicate what already exists.

Alternatively, there should be a quick stay process. An appellant should be able to obtain a stay of an Inspector's determination from the OLRB on the basis of the following test: 1) the inspector's decision purports alters an employer's or constructor's existing practice of work assignment; and 2) there is no imminent occupational or public health and safety risk in granting the stay. The OLRB should have power to set interim terms in the event that there is a legitimate risk of harm to public interest, pending the outcome of the appeal and/or other related OLRB processes such as jurisdictional dispute applications.

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NOTES

[83] Specific recommendations are also found passim, particularly at Questions 3, above (addressing opposing public interests), 8 – 9 (SoPs) ,19 (compulsory functions), 20-23 (classification review) and 27 (relationship of College decisions to OLRB).

[84] These proposals pertain to the construction industry. Local 183 does not take any position as tow whether they ought to be applied in other sectors.

[85] See discussion at Question 7, below.

[86] See Question 9, below.

[87] See Questions 20-24, below.

[88] See Appendix "G" – “Enforcement of non-members among regulated professions in Ontario.”

[89] See Wiseman and Richmond at paras. 74-84 for a discussion of the Stacey Electric case.

[90] The MOL had a policy of exempting the kind of work performed by LIUNA members in the Stacey Electric case which was not adopted by the College Inspectors. In fact, the College Inspectors claimed to rely on the removal of the exemption, although there was no regulatory change. See Wiseman and Richmond at para 32.

[91] See Wiseman and Richmond, passim. At paras. 30-31 they discuss MOL guidelines advising inspectors to distinguish between bona fide health and safety concerns and jurisdictional disputes.

[92] See Wiseman and Richmond at para. 41 on the unique nature of the jurisdictional dispute process.

[93] 61. (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order. 1998, c. 8, s. 57 (1).

Parties

(2) The following are parties to the appeal:

1. The appellant.
2. In the case of an appeal by an employer, the employer’s workers and each trade union representing any of the workers.
3. In the case of an appeal by a worker or trade union representing a worker, the worker’s employer.
4. A Director.
5. Such other persons as the Board may specify. 1998, c. 8, s. 57 (2); 2011, c. 1, Sched. 7, s. 2 (11).

Inquiry by labour relations officer

(3) The Board may authorize a labour relations officer to inquire into an appeal. 1998, c. 8, s. 57 (2).
Same

(3.1) The labour relations officer shall forthwith inquire into the appeal and endeavour to effect a settlement of the matters raised in the appeal. 1998, c. 8, s. 57 (2).
Report to Board

(3.2) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board. 1998, c. 8, s. 57 (2).

Hearings
(3.3) Subject to the rules made under subsection (3.8), the Board shall hold a hearing to consider the appeal unless the Board makes an order under subsection (3.4). 1998, c. 8, s. 57 (2).
Orders after consultation

(3.4) The Board may make any interim or final order it considers appropriate after consulting with the parties. 1998, c. 8, s. 57 (2).

Same
(3.5) The Statutory Powers Procedure Act does not apply with respect to a consultation the Board makes under subsection (3.4). 1998, c. 8, s. 57 (2).

Practice and procedure
(3.6) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to present their evidence and to make their submissions. 1998, c. 8, s. 57 (2).

Rules of practice
(3.7) The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable. 1998, c. 8, s. 57 (2).

Expedited appeals
(3.8) The chair of the Board may make rules to expedite appeals and such rules,
(a) may provide that the Board is not required to hold a hearing; and
(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions. 1998, c. 8, s. 57 (2).
[…]

Conflict with Statutory Powers Procedure Act
(3.10) Rules made under this section apply despite anything in the Statutory Powers Procedure Act. 1998, c. 8, s. 57 (2).

Rules not regulations
(3.11) Rules made under this section are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006. 1998, c. 8, s. 57 (2); 2006, c. 21, Sched. F, s. 136 (1).

Quorum
(3.12) The chair or a vice-chair of the Board constitutes a quorum for the purposes of this section and is sufficient for the exercise of the jurisdiction and powers of the Board under this section. 1998, c. 8, s. 57 (2).
Entering premises

(3.13) For the purposes of an appeal under this section, the Board may enter any premises where work is being or has been done by workers or in which the employer carries on business, whether or not the premises are those of the employer, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any matter and post therein any notice that the Board considers necessary to bring to the attention of persons having an interest in the appeal. 1998, c. 8, s. 57 (2).

Powers of the Board
(4) On an appeal under this section, the Board may substitute its findings for those of the inspector who made the order appealed from and may rescind or affirm the order or make a new order in substitution therefor, and for such purpose has all the powers of an inspector and the order of the Board shall stand in the place of and have the like effect under this Act and the regulations as the order of the inspector. 1998, c. 8, s. 57 (2).

Order, extended meaning
(5) In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector. R.S.O. 1990, c. O.1, s. 61 (5).

Decision of adjudicator final
(6) A decision of the Board under this section is final. R.S.O. 1990, c. O.1, s. 61 (6); 1998, c. 8, s. 57 (3).
Suspension of order by adjudicator pending disposition of appeal

(7) On an appeal under subsection (1), the Board may suspend the operation of the order appealed from pending the disposition of the appeal. R.S.O. 1990, c. O.1, s. 61 (7); 1998, c. 8, s. 57 (4).
Reconsideration

(8) The Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it under this section and may vary or revoke any such decision, order, direction, declaration or ruling. 1998, c. 8, s. 57 (5).

[94] See Wiseman and Richmond at paras. 19-20 for a discussion of an OLRB finding that suspending an inspector's order actually reduced risk factors.





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.

Local 183 represents construction workers in all sectors of the construction industry, in a geographical area including the GTA but extending from Milton and Halton in the west, to Kingston in the east, and north to Barrie and the County of Simcoe. It has been extremely successful in organizing the unorganized and improving the quality of life for construction workers and their families in its jurisdiction. It has done so largely because it has not taken a rigid, craft based approach to organizing but instead has sought to organize all-construction employee bargaining units, or other "wall-to-wall" units that allow for flexibility in workplace assignments, in keeping with the economic needs of the construction industry. In keeping with this approach, Local 183 offers a wide variety of skills training to its members which do not conform to SoPs but do address the needs of the industry.

The imposition of SoPs as a means of excluding uncertified workers from work within the SoPs means that Local 183 cannot continue in its successful organizing strategies. It means its members will no longer be able to perform the work they have been performing. It means that the employers it bargains with will be restricted from competing in some areas of the construction industry. It is a serious threat to North America's largest construction union local.

Local 183 has collective agreements with numerous employer associations in various sectors of the construction industry and pattern agreements in others, including: Durham Residential Construction Labour Bureau; Fencing; Greater Toronto Electrical; Greater Toronto Sewer and Watermain Contractors' Association; Heavy Construction Association of Toronto; Hydro, Vacuum & Flushing; Independent Unionized Landscaping Contractors' Association; Labourers Mainline Pipeline Agreement for Canada; Residential Low Rise Trim Carpentry; Masonry Contractors' Association of Toronto; Master Distribution Pipeline Agreement for Canada; Metropolitan Toronto Apartment Builders' Association; Ontario Concrete & Drain Contractors' Association; Ontario Formwork Association and the Formwork Council of Ontario; Residential Carpentry Contractors' Association of Greater Toronto; Residential Framing Contractors' Association of Metropolitan Toronto and Vicinity; Residential Plumbing; Residential Tile Contractors' Association; Restoration Contractors' Association; The Residential Low Rise Forming Contractors' Association of Metropolitan Toronto and Vicinity; Toronto and Area Road Builders' Association; Toronto Residential Construction Labour Bureau; Utility Contractors' Association; Carpet Installers and Hardwood Installers.

A number of these employer associations are accredited to represent all employers in their accredited bargaining units under the Ontario Labour Relations Act. In order to become an accredited employer association, the association must demonstrate a "double majority" pursuant to s. 136 of the Ontario Labour Relations Act, which has been described as follows:

"[T]he applicant must establish that it … represents a majority of the employers in the unit of employers the Board has determined is appropriate for collective bargaining and that those employers it represents employed a majority of the employees who were on the payrolls of the employers in the bargaining unit during the week immediately preceding the application date" [95]

In other words, these employer associations became accredited because most of the employees in the bargaining units they applied for were represented by Local 183 (or in some case, Local 183 and its sister locals or fellow members of a council of trade unions).

Local 183 bargains with the following accredited employers' associations: Greater Toronto Sewer and Watermain Contractors' Association; Heavy Construction Association of Toronto; Metropolitan Toronto Apartment Builders' Association, Ontario Concrete & Drain Contractors' Association; Residential Framing Contractors' Association of Metropolitan Toronto and Vicinity; Residential Low Rise Forming Contractors' Association of Metropolitan Toronto and Vicinity; Toronto and Area Road Builders' Association; Toronto Residential Construction Labour Bureau; Utility Contractors' Association.[96]

In a number of cases, the bargaining unit descriptions of the accredited employer associations are for more than just construction labourers, indicating that Local 183 represented the majority of the employees including those other than construction labourers.

The following accredited associations have "all employee" or "all construction employee" bargaining units: Heavy Construction Association of Toronto; Metropolitan Toronto Apartment Builders' Association Ontario Concrete & Drain Contractors' Association; Utility Contractors' Association Residential Low Rise Forming Contractors' Association of Metropolitan Toronto and Vicinity; Toronto Residential Construction Labour Bureau.

The Toronto and Area Road Builders' Association bargaining unit with Local 183 includes all employees other than persons covered by collective agreements with Teamsters Local 230 and IUOE Local 793 (i.e., other than truck drivers and operating engineers).

The Residential Framing Contractors' Association of Metropolitan Toronto and Vicinity bargaining unit includes Carpenters, carpenters’ apprentices and construction labourers.

The Residential Tile Contractors' Association bargaining unit includes Marble, Tile, Terrazzo, Cement Masons and their respective apprentices, helpers, improvers, labourers and working foremen.

In short, the OLRB has found in a number of cases that Local 183 represents most of the construction workers in a number of areas of the construction industry, whether they are construction labourers, all construction employees, carpenters and labourers or marble, tile, terrazzo and cement masons.

Local 183 represents members of almost all of the trades prescribed as certified, or whose work falls within those trades: Brick and Stone Mason; Cement (Concrete) Finisher; Concrete Pump Operator; Construction Craft Worker; Electrician — Construction and Maintenance; Exterior Insulated Finish Systems Mechanic; Floor Covering Installer; General Carpenter; Heavy Equipment Operator — Dozer; Heavy Equipment Operator — Excavator; Heavy Equipment Operator —Tractor Loader Backhoe; Hoisting Engineer — Mobile Crane Operator 1(for 0-8 ton cranes, e.g. boom trucks); Hoisting Engineer — Mobile Crane Operator 2 (also for 0-8 ton cranes); Ironworker — Structural and Ornamental; Painter and Decorator — Commercial and Residential (for other than finish work); Painter and Decorator — Industrial (for other than finish work); Plumber; Powerline Technician (for conduit and cable installation); Precast Concrete Erector; Precast Concrete Finisher; Reinforcing Rodworker; Restoration Mason; Roofer (for green roofs and above-ground waterproofing); Steamfitter and Terrazzo, Tile and Marble Setter.

Local 183's sister locals represent members of other prescribed trades including Hazardous Materials Worker (in demolition and asbestos abatement); Heat and Frost Insulator and Refractory Mason.

Local 183 has training facilities (the "Training Centre") to deliver relevant skills and safety training to its members. There are four campuses -- Toronto (Wilson), Vaughan, Cobourg and Barrie – and an on-site Mobile Training Classroom. The Training Centre's 2014 operating budget was approximately 8 million dollars. The Training Centre received approximately $500,000 in Ministry of Training, Colleges and Universities funding allotment for 2014-2015.

Training at the Local 183 Training Centre is not confined to the SoPs. Local 183's Training Centre is a TDA for Brick and Stone Masons, Cement Finishers and Construction Craft Workers; but it also provides a wide variety of construction skills courses and health and safety courses outside of the certified trades curriculum.[97]

Local 183 Training Centre course offerings in construction skills include Asphalt; Bridge Construction; Concrete and Drain; Fence Installation; surveying and GPS; Handyman; High Rise Forming; High Rise Rodman; House Framing; Landscaping; Low Rise Forming; Railroad; Railroad (Signals Program) Residential Panel Construction; Residential Trim; Road Construction; Sewer and Water Main; Tile; Utilities; Welding; Bridge Construction and Demolition.

Local 183 Training Centre course offerings in health and safety include Basics of Supervising; Bell Canada Confined Space Safety Training; Chainsaw Operator Safety Training; Concrete and Drain Safety Program; Confined Space Awareness Training; Electrical Safety Awareness Training; Fall Protection - Fall Arrest; Fire Extinguisher Safety Training; Fraco Work Platform 20K; Forklift ROT; Framing Crew Leader; Hoisting and Rigging Safety Awareness - (Swamping); Hoisting and Rigging Training - (2 Day); Level 1 Health and Safety - WHSC; Level 2 Health and Safety - (Law) - WHSC; Level 2 Health and Safety - (Committee) - WHSC; Low Rise Forming Safety; Man and Material Hoist Safety; Natural Gas (ROT) - CH 02 NG; Occupational Health and Safety Act Worker Awareness Program; Occupational Health and Safety Act Supervisor Awareness Program; Personal Protective Equipment; Powder Actuated Tool Training; Propane (ROT) - CHO 02; T.H. Confined Space Entry Training - IHSA; Traffic Control Book #7; Traffic Control Safety Training; Transportation of Dangerous Goods - (TDG); Trenching Safety Awareness; Type 1 & 2 Asbestos Work in Construction; Type 3 Asbestos Abatement Training; Utilities Health & Safety Program - (3 Days); Welding Certification Test; WHMIS; WHSC Basic Certification; Workplace Specific Hazard - (Construction Certification Stream II) - WHSC; Scaffold Safety Awareness; Scissor Lift - Genie Boom ROT; Small Equipment ROT; Small Tool Safety Training; St.Johns Ambulance First Aid Emergency CPR (1 Day); St.Johns Ambulance First Aid Standard - CPR (2 Day); 0-8 Ton Boom Truck (Low Rise Forming); Forklift Safety Certification; Small Equipment Operator Safety Training; and 0-8 Ton Boom Truck (Utilities).

By September 2014 there were 26,413 trainees trained at the Local 183 Training Centre, up from 22,000 in 2013.[98] By the end of 2014, the total number of trainees was approximately 32,000. It cannot be said that SoPs are the only basis for attracting workers to skills training in construction.

To the extent that SoPs are used to exclude uncertified workers from performing tasks within the SoP, they reduce work opportunities for members, they prevent contractors bound to Local 183 from competing; they impede Local 183's ability to organize and they create greater areas of dispute with other construction trade unions.

To the extent that rival trade unions are the exclusive TDAs for compulsory trades, SoPs create artificial jurisdictional barriers to employment without any corresponding public interest rationale.
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NOTES

[95] Heavy Construction Association of Windsor v. Labourers' International Union of North America, 2013 CanLII 36514 (OLRB) at para. 8.

[96] A list of all accredited employers organizations and links to the OLRB Certificates and decisions is found at: http://www.owtlibrary.on.ca/english/olrbAccreditation/index.htm.

[97] https://www.183training.com/

[98] Training Centre Magazine at p. 7 (https://183training.com/images/TCM%20Fall%202014/index.html)


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

From a labour economics perspective, the purpose of SoPs is to ensure that occupational titles are reliable indicators of competence. SoPs should be based on the occupational standards of a particular trade in order to match worker capabilities with jobs. "Core elements" of a trade therefore exist and have a purpose of enhancing labour market efficiency:

"Without occupational standards, training is hit-and-miss. Occupational titles lose their reliability as signals of competence. The ability of the labour market to match capabilities with jobs is diminished. Conversely, the efficiency of the labour market is enhanced when occupational standards reliably communicate both the core of an employer’s needs and the core of a worker’s capabilities."[99]

"Core elements" of a trade therefore do not equate with a broad protection of public interest. Nor do they equate with trade monopolies over core elements. For example, it would be difficult to argue that painting is not a core element of the trade of painter. But members of other trades paint and it may be in the public interest that they do so for reasons of economy and efficiency.[100]

It is the norm that competencies of trades overlap:

"Shared or overlapping competencies between occupations are the norm in the economy. While there are a core of competencies that are central to an occupation, there are other competencies which are often shared with other occupations. Job classification systems, union jurisdictions and ‘work rules’ may introduce boundaries, but these boundaries are products of human resources management or labour relations systems. Clear-cut boundaries are neither the intention nor the natural outcome of occupational standards."[101]

This overlap is not confined to peripheral functions:

"Over the past 40-some years under the TQAA, it has become apparent that overlaps between and amongst trades are inevitable, not only on the periphery of the functions performed, but in some cases with regard to the various trades' core functions."'102]

Examples of overlapping core competencies in construction include the carpentry portion of formwork.[103]

Moreover, there are tasks which are not "core elements" of any particular trade but which nevertheless pose a serious risk to the public interest such as welding or scaffolding. However, the public interest risk is addressed by other means: OHSA, and associated regulation e.g Ontario Regulation 213/91 Construction Projects; Technical Standards and Safety Act, 2000 and associated regulations e.g. Ontario Regulation 220/01.

--------------------------------------------------------------------------------------------------------------------------------------------NOTES
[99] O'Grady at p. 3.

[100] See e.g. Ontario Provincial Council of the International Union of Painters and Allied Trades, International Union of Painters and Allied Trades, Local 1590 v. Electrical Power Systems Construction Association, 2007 CanLII 904 (OLRB), in which the OLRB upheld the assignment of touch up painting to members of the Iron Workers.

[101] O'Grady at p. 4; emphasis in the original.

[102] Armstrong Report, para. 75.

[103] See e.g. Carpenters and Allied Workers, Local 27 v Universal Workers' Union, 2014 CanLII 54367 (OLRB) at paras. 10-18 where the OLRB surveys four decades of jurisprudence where the carpentry portion of formwork has been treated as within the trades of carpenters and labourers.


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.

In view of the foregoing: SoPs should reflect occupational standards, but they should not be the basis of right to practice. That should be left to more narrowly defined compulsory tasks.

"Occupational standards are at the heart of any strategy or system to support competence in the workplace. The purpose of an occupational standard is to define the knowledge, skills and attitudes required for effective performance in the workplace and for broad employability in a particular line of work. Occupational standards, therefore, are the essential link between human capital investment on the one side and employability and productivity and productivity on the other. For training to be economically efficient for workers, employers and society, it must be geared to developing the competencies described in an occupational standard. An occupational standards is therefore a ‘public good’ that confers a broad social benefit which cannot be captured or monopolised by anyone. …

"Occupational standards are (or should be) the basis of everything else the College does. Occupational standards are (or should be) the foundation of training standards. Occupational standards are (or should be) the basis for the Scopes of Practice set out in Reg. 275/11, 276/11, 277/11 and 278/11. And finally, occupational standards, through their shaping of Scopes of Practice, provide (or should provide) the basis for classifying trades. For all of these reasons, the most important contribution of the College of Trades is the development and maintenance of occupational standards. Occupational standards are the first, and essential step, in supporting the development of competence in the skilled trades."[104]

The right to practice: Compulsory tasks, not compulsory trades

The SoPs for the right to practice are the basis of the Colleges ability to regulate non-members of the College. They provide the College with the ability to prevent non-members from working, and effectively, in many cases, prevent employees from representation by the trade unions of their choice.

Since the purpose of the College is self-regulation, not regulation of non-members, limitations on the right to practice should be narrow and justified on the basis that they are required in order to prevent harm to the public interest.
The SoPs do not provide a rational basis to establish those limitations. Definitions of "core" and "peripheral" tasks are inadequate.

There are tasks shared by trades which are currently compulsory which pose risk to the public interest. The SoP for a plumber includes "Installing piping for any process, including the conveyance of gas"[105]; that of the Steamfitter includes "Installing the piping for any process, including a process that conveys gas".[106] Neither task could be considered "core" in the sense that it is exclusive to one or the other trade.

Other tasks of compulsory trades which may be considered "core" in the sense of being uniquely associated with one trade do not necessarily carry any risk. The SoP for a plumber includes "Connecting any appliance that uses water supplied to it",[107] which could mean screwing on a new showerhead or hooking up a portable dishwasher to a tap. Similarly, the SoP for Electrician includes "securing conductor connections by soldering or other mechanical means", which could refer to installing a high voltage electrical connection or to installing a 15 watt light bulb.

Rather than define right-to-practice in terms of whether it pertains to the "core" or "periphery" of an SoP (which would entail a complete review of SoPs for core and peripheral functions), right-to-practice restrictions should be based on compulsory tasks rather than trades.

Compulsory tasks for purposes of OCTAA should be those which are not addressed through other legislation and regulation.

This approach protects the public interest while avoiding the manipulation of the College for jurisdictional purposes or for the purposes of creating specialty contractor cartels.

Alternatively, the SoP for compulsory trades should be narrowed to those tasks which cannot be performed by persons without a COQ without harming the public interest.

SoPs for Self-Regulatory Purposes: Training, Right to Title, Maintenance of standards among members of the College

SoPs for self-regulatory purposes – e.g.,. training, right-to-title, maintenance of standards, discipline -- should be broad for two reasons: 1) SoPs for self-regulatory purposes do not restrict the rights of non-members of the College, so that breadth does not have a negative consequence; and 2) the broader the SoPs are for the purpose of self-regulation, the greater the extent of self-regulation (which is supposedly the primary purpose of the College).

SoPs for these purposes should reflect the training curriculum. There may be many elements to it which are shared by many trades (e.g. basic skills, safety training). A broad SoP for training promotes the objects of OCTAA and provides a basis for self-regulation of the trade, i.e. maintaining standards among members of the trade.

The SoP for the purposes of self-regulation should also reflect what is particular about the expertise of the trade. It should include tasks that are unique to the trade and tasks that are commonly associated with the trade.

However, the SoPs for the purpose of self-regulating functions should not place restrictions on non-members of the College. They should reflect occupational standards so that competence can be identified by tradespersons, consumers and employers:

"Advocates for the economic interest of particular occupations sometimes confuse or fail to grasp the proper role of occupational standards. The purpose of occupational standards is not to create islands of protected work. Nor is it the purpose of occupational standards to exclude individuals from performing particular workplace tasks. Occupational standards are not about ‘jurisdiction’ or exclusivity. Occupational standards are about competence and only about competence."[108]

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NOTES

[104] O'Grady at p. 3

[105] O.Reg 275/11, s. 29

[106] O.Reg 275/11, s. 42

[107] O.Reg 275/11, s. 29

[108] O'Grady at pp. 3-4

 

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

A. Review for compulsory tasks not trades

As noted above, the urgent issue for the College is a review to determine what tasks should be made compulsory. Where there is no public interest to be served by prohibiting non-members of the College from engaging in a task, the task should not be compulsory, regardless of the trade with which it is associated.

A review based on compulsory tasks should eliminate the expansive, trade union-driven efforts to claim jurisdiction through scope of trade. A good example of the latter is the General Carpenter's Trade Board decision to seek compulsory status for General Carpenters.[109] The SoP is: "1. Establishing building procedures. 2. Preparing a work site for building. 3. Laying out, constructing and installing form work. 4. Framing floors, walls, ceilings and roofs. 5. Installing interior and exterior finishing materials and hardware. 6. Constructing heavy framing using post and beam and timber construction. 7. Building stairs, newel posts, handrails and balustrades. 8. Laying out, constructing and installing door and window systems including hardware. 9. Performing renovations."[110] It is difficult to see how this could be the basis for a useful determination of what, if anything, should be performed exclusively by certified general carpenters in order to protect the public interest.

Regulated Health Professions Act (“RHPA”) System of Controlled Acts

The proposed review based on compulsory tasks not trades has a precedent in the regulations of health professionals. The RHPA and the body charged with classification of health professionals, the Health Professions Regulatory Advisory Council (“HPRAC”) were the results of a report titled Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions. The report was part of the Health Professions Legislative Review ordered by the Province. One of the report's recommendations, accepted and implemented in the RHPA, was to move away from rigid scopes of practice to a list of designated controlled acts. Section 27(2) of the RHPA lists thirteen controlled acts which can only be performed by a person that is authorized by a health profession Act to perform the controlled act or by a person to whom an authorized health professional has delegated performance of the controlled act.[111] As noted in the report, the new regulatory system is based on the principle that "the sole purpose of regulation is to protect the public interest, and not enhance any profession's economic power or to raise its status."[112] The old health professions system in which a few health professions and their members held a monopoly over services that fell within their scope of practice was found to be generally untenable and a barrier to innovation, which made it more difficult to provide the best service at the lowest price.[113] This system resulted in the granting of "unnecessarily wide and ill-defined monopolies".[114]

As the report noted:

"The reality is that in no profession are all the activities potentially harmful. To prohibit other caregivers from providing harmless services solely because they are within the scope of practice of a licensed profession maintains a useless function." [115]

Similarly it makes little sense to prohibit members of voluntary trades from performing construction tasks which pose little safety risks. Maintaining the old system of outdated and imprecise scopes of practice only strengthens the monopolies already held by certain trades, to the detriment of the public interest. Breaking up skills cartels and providing more flexibility and options for consumers is a matter of public interest.

Moreover, the Controlled Acts approach has proven to be effective and has gained acceptance by the affected professionals. A review of the RHPA by HPRAC in 2001 resulted in a report entitled Adjusting the Balance: A Review of the Regulated Health Professions Act. The mandate of the report was to answer the question “Has the RHPA generated a regulatory system that is effective, efficient, flexible and fair?”.[116] As part of its review HPRAC considered the move from a system of scopes of practice to a system of controlled acts and concluded that it was "well supported by stakeholders as mechanisms to protect the public, promote quality services, and hold professions accountable."[117] The report noted that HPRAC received no submissions that suggested this system should be discarded or that the previous system should be reinstated. The system of controlled acts was found to "protect the public while maintaining flexibility and people's choice of health care provider."[118]

The report notes that where the definition of a controlled act is unclear and has the potential to cause problems, a regulated health profession can ask the Ministry of Health and Long-Term Care to clarify the definition, can ask a court for its interpretation or can ask the Minister to refer the matter to HPRAC for resolution.

While professions under the RHPA maintain scopes of practice they are no longer the basis of unauthorized practice. Rather, scopes of practice serve to inform health professionals about the general duties and methods of their professions without making them exclusive to that particular profession. This is a sensible acknowledgement of the inherent overlap between scopes of practice among different occupational groups. It is as well a sensible recognition that an SoPs that is appropriate for training and right-to-title is not necessarily appropriate for right-to-practice.

It is difficult to imagine a sector where the public safety interest is more critical than health care. If regulation of right-to-practice on the basis of tasks, not trades, adequately protects public safety among health professionals, than it will do so in the construction industry.

An impartial review panel

The review for the purpose of determining compulsory tasks should be undertaken by an impartial review panel.
Ideally, the review panel should be independent of the College. The College, as noted above, has an inherent bias towards expanding the scope of compulsory tasks in order to expand its membership and therefore its revenues. Nor does the College have the expertise to deal with the different regulatory regimes protecting the public interest in relationship to what are primarily workplace issues. In this respect, the HPRAC provides a model (discussed more fully with respect to Question 20, below).

Alternatively, the review panel should be composed of persons on the roster of adjudicators of the College who do not have affiliation with any particular trade.

Whether or not the review panel is part of the College, it should be empowered to commission its own expert reports and make determinations in the nature of a public inquiry rather than an adjudicative board in an adversarial process. The public inquiry is a good model in that all affected interests are taken into account before findings and recommendations are made. An adversarial adjudication model is far too restrictive because of the public interests that are at stake.

Beginning the review process: existing compulsory trades

The first step in the review process is to deal with the existing compulsory trades. The compulsory trades should identify those tasks which they believe should be the basis of a right-to-practice, the specific public interests that the compulsory status would promote and the ways in which existing protections for public interest do not address the tasks for which compulsory status is sought. The economic impact of a compulsory designation should be reviewed in order to demonstrate that any adverse economic effects are outweighed by the need to make the compulsory designation.

The review process for the determination of compulsory tasks among existing compulsory trades should resemble the classification review process: they do the same thing, i.e., determine the scope of right-to-practice prohibitions on non-college members performing work. The classification review process is discussed in more detail below (Questions 20-23).

The review should place a heavy onus on the trade to demonstrate why the task should be compulsory, since the consequences of compulsory status are so detrimental to non-members of the College and so advantageous to the trade with right-to-practice.

The review must take into account existing practices of work assignment that have evolved to suit the needs of Ontario's construction industry.

The review should involve all stakeholders, including competing trades. Adequate notice and time to gather evidence and make submissions should be given.

Ongoing review of compulsory tasks

Once the review process is completed and compulsory tasks defined, the Review Panel should have an ongoing process (e.g. review committee) to reconsider scope issues as technology and other circumstances change.

Non-compulsory trades seeking to have tasks within their SoPs be deemed compulsory would use the classification review process, as modified by the recommendations set out in response to Questions 20-24, below.

B. SoP review for self-regulation purposes

Following a review for compulsory tasks, SoPs should be reviewed for self-regulatory purposes.

A complete review of SoPs is a massive undertaking. A previous attempt by the College was unsuccessful.[119] However, once the right-to-practice and consequent jurisdictional issues are removed from the equation by the review process for compulsory tasks, described above, parties will likely be able to approach review of SoPs in a manner more consistent with public interest and less prone to self-interested gaming.

Ideally, SoPs for self-regulatory purposes -- training, right to title and maintenance of standards/discipline -- should be reviewed in order to bring them in line with their purposes under OCTAA. They are currently a mish-mash of training curricula, historical anomalies, and exaggerated claims to work jurisdiction. They should be harmonized with each other so that SoPs are described with similar degrees of specificity across trades, and they should be based on occupational standards so that they promote competency.[120[ This review could be conducted internally by the Trade Boards, since it would be in the Trade Boards' interest that SoPs used for training and right-to-title accurately reflect the competency of tradespersons.

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NOTES

[109] http://www.collegeoftrades.ca/wp-content/uploads/Minutes-General-Carpenter-TB-February-20-2014.pdf

[110] O.Reg. 275/11 s. 15. Many of these functions are rarely if ever performed by journeymen carpenters. Establishing building procedures is done by project managers or supervisors. Site preparation is typically labourers work. Formwork has been recognized by both the MOL (in the "formwork exemption" to the Labourers Ministerial designation) and the OLRB as labourers work in both ICI and non-ICI sectors (see Question 26 below). Residential framing in Local 183's jurisdiction is mostly performed by Local 183 members. Installing finishing materials is done by many trades, depending on the materials. It is not clear what is meant by "renovation" but LIUNA's is designated by the MOL as the representative of restoration workers in the ICI sector..

[111] RHPA, s. 27(1)

[112] Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions – Executive Summary at p. 3

[113] Ibid

[114] Ibid at p. 13

[115] Ibid at p. 14

[116] Adjusting the Balance: A Review of the Regulated Health Professions Act at p. 3

[117] Ibid at p. 10

[118] Ibid

[119] See Oct. 31, 2013 OCOT CCW Trade Board draft minutes item 6: "An internal Scope of Practice Working Group has been created to consider how this important issue impacts the work of the College. The existing scopes of practice under TQAA and ACA are highly inconsistent, providing challenges to areas such as program evaluation, new trade development, compliance and enforcement, and review panels. Staff will continue researching and preparing a scope of practice framework, and will continue to update the Trade Board at each stage of the process. Although the board expressed its confidence in the Chair of the Construction Divisional Board in representing the sector; the Trade Board also expressed its concern that there is not enough trade board representation from the Construction sector on the working group.
"CCW20131031-10 - That the trade board opposes the entire Scope of Practice project.
"If the project proceeds, the Board of Governors Working Group (WG) for the Scope of Practice Framework Project be proportionally representative of the size of the trade/industry being reviewed. Additionally, Board of Governors should not be members of the WG unless they are representative of the trade industry issue being reviewed."
See February 14th, 2013 Draft Minutes of CCW Trade Board: Item 7, Scopes of Practice Framework: "Project cancelled by Board of Governors."

[120] O'Grady at p. 3.


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

As indicated by the preceding sections, the answer to this question is "No."

Existing SoPs are wholly inadequate for enforcement with respect to non-members of the College and give no guidance where SoPs overlap. For the same reason they are inadequate for classification review. Rather, enforcement of prohibitions on non-members performing work, whether through existing compulsory trades or classification review, should be based on the definition of compulsory tasks where right-to-practice is the only way in which to protect an identified public interest.

At best, existing SoPs are useful in apprenticeship training and maintaining standards through disciplinary procedures against College members. Even there, as noted above, they have not been well designed: they should be based on occupational standards promoting competency, but instead they are based on a combination of factors including jurisdictional claims.


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

No. See Questions 7-10 above


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.

Yes. See Questions 7-10 above.


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

An overlap exists where two or more SoPs include the same work. Existing SoPs are replete with overlaps. Overlaps exist between "core" functions of trades, as well as peripheral functions.[121]
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NOTES

[121] See Questions 7-8 above with respect to overlap in core functions of plumbers/steamfitters and carpenters / labourers. See Question 9, above regarding the over-breadth of the General Carpenter SoP.


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

From Local 183's perspective, there is a significant concern that SoPs describe work which is performed by many uncertified tradespersons. The issue is not whether SoPs overlap; it is whether they should be used to prohibit performance of work by persons other than members of the College.

See Question 6, above. See fn. 103, above with respect to the carpentry portion of formwork. Other areas where SoPs of certified trades "overlap" with the traditional work of uncertified members of Local 183 or its sister locals include:

- the work of Electricians (installation of conduit) and Powerline Technician (constructing or assembling a system of powerlines. both of which involve tasks such as digging ditches and installing poured concrete conduit duct banks which require skills more often employed by Labourers than the other trades.
- installation and material handling on solar farms (Electricians);
- site service work involves work frequently performed by Local 183 members which is arguably within the SoP of the Plumbers and has been subject to jurisdictional disputes.[122]
- stucco (Painter and Decorator – commercial and residential)
- rebar (Ironworkers – generalist and Reinforcing Rodworker)
- backhoes (Heavy Equipment Operator)[123]
- hoarding and fencing (General Carpenter)

This is by no means an exhaustive list. Many of these types of work have been the subject of jurisdictional contests between Local 183 and other trade unions, whether in the form of jurisdictional disputes or displacement applications.

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NOTES

[122] See, e.g., Mechanical Contractors Association of Ontario v. Ontario Pipe Trades Council (United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527), 1984 CanLII 1061 (OLRB)

[123] The Board has found backhoe operators to be "labourers" for the purposes of certification of a labourers craft unit; see e.g. Labourers' International Union of North America, Local 183 v. York Trafalgar Homes Corp., 2014 CanLII 24677 (OLRB)


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?

In Local 183's respectful submission, this question puts the cart before the horse. A trade that seeks to exclude others from performing its work, and thereby gain State-sanctioned authority to enforce a monopoly on jurisdiction, should have a heavy onus to show that its monopoly is justified by a risk of harm that is not otherwise addressed by other regulatory or judicial means. See Questions 17-20

For example, the OLRB has specialized expertise in dealing with the interaction of trade SoPs, occupational health and safety issues and the jurisdictional motivations of the parties.[124]

The solution is to ensure that SoPs are used for self-regulating purposes promoting the objectives of OCTAA, and the limited public interests that it is meant/designed to protect.

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NOTES

[124] See e.g. PCL Constructors Canada Inc. v. Labourers' International Union of North America, Local 247, 2010 CanLII 46852 (OLRB), and appeal of an Inspector's order relating to a regulation made under OHSA involving interpretation of a regulation made under the TQAA. The Board noted at para. 16, "Clearly … jurisdictional issues may have motivated the actions and positions of certain of the parties. However, this decision, under the OHSA, in no way determines the jurisdiction of either of the two principal unions involved, being the Labourers and the Sheet Metal Workers, and what particular parts of the work described above (related to the removal of portions of the HVAC system) falls within the work jurisdiction of either, or both, of these two unions."





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?

As noted above, compulsory status grants an exclusive right-to-practice. While an exclusive right-to-title (i.e. voluntary status) gives employers and consumers assurance of the quality of training and work performed by a tradesperson, assuming standards are maintained, the exclusive right-to-practice deprives other persons of the right to perform the work of the compulsory trade.

In other words, compulsory status determines who does the work, not how the work is done.

This intrusion on the rights of other workers suggests that compulsory status should be confined to where it is necessary, i.e., where there is a legitimate occupational or public health and safety issue that cannot be addressed by other means. This is particularly the case in the construction sector. Since OCTAA was enacted to address the shortage of skilled labour in the construction industry and the underrepresentation of groups such as women, immigrants and other vulnerable groups in the skilled trades, it should not prohibit workers from performing tasks unless there is no other option.[125]

Compulsory certification is designed "to protect the public from low-quality services in areas where it is difficult for users of the service to judge its quality and where the consequences of poor service can be severe."[126] It follows that "compulsory certification power should be granted if only all of the following conditions are met":

- "It should be difficult for users to judge the quality of the service, perhaps because it is complex"
- "The service should be infrequently used because if it is frequently used, then users should be able to accumulate the information about its quality through experience, and they have an incentive to acquire the information because they are using it frequently."
- "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."
- "There are not viable alternatives to compulsory certification to achieve those same ends."[127]

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NOTES

[125] Cf. Immigration Legislative Review Advisory Group (1998, p. 36) cited by Gomez report at p. 5 on the tendency of Canadian self-regulating bodies to use "their role as protectors of the health and safety of consumers as a guise to protect the interests of their members through exclusionary entrance requirements. This has made interprovincial mobility for all Canadians extremely difficult, and has created even greater barriers for immigrants …"

[126] Gomez at p. 3

[127] Ibid


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?

Local 183 submits that the answer to this question is an emphatic "NO". The classification lacks flexibility, does not address labour supply issues and turns occupational standards which should be developed for advancing competency and increasing the number of skilled tradespersons into unjustified barriers to employment.

Flexibility: Sectoral and geographical variation

As O'Grady notes, "the decision to enact an Apprenticeship Act had nothing whatsoever to do with compulsory or voluntary status. Those distinctions did not arise until after WWII."[128] Even then, it was recognized that the need for restrictions on practice were variable, so that there is a blanket "industrial exemption" applying to all compulsory trades.[129] (all compulsory construction trades?)

Similarly, acknowledgement of geographical variation is built into the existing trade classifications. In particular, the compulsory trade of electrician is divided into "Electrician — Construction and Maintenance" and "Electrician — Domestic and Rural".[130] This distinction highlights the inadequacy of SoPs as the basis for determination of right-to-practice: The SoP for Domestic and Rural Electrician is identical to that of Construction and Maintenance Electrician but limited to work on houses, multiple dwelling buildings containing six or fewer dwellings, farm buildings and farms.[131] So despite a nominal training in identical SoPs, persons who are certified as rural electricians cannot perform the work of construction and maintenance electrician and vice versa.

Labour supply and unjustified barriers to employment

The classification of trades as compulsory creates barriers to employment for persons who are not certified in the trade. It inevitably affects labour supply.

This has a serious economic impact in the College is not specifically mandated to deal with labour supply management and "appears to have no reliable way to bring rigorous economic analysis to bear on either ratio or classification decisions":[132]

"Actions which create shortages damage the efficiency of the labour market, raise costs, undermine productivity and competitiveness, and destroy employment opportunities."[133]

Restrictions on entry and reduced labour supply resulting from compulsory classification "creates an artificial scarcity that provides monopoly rents (wages above the competitive norm that would otherwise clear the market). [134] Where incumbents control the process of classification, they have an incentive to "pull up the ladder behind them" by reducing entry into the occupation.[135] Wage premiums resulting from occupational licensing have been reported in numerous recent studies and are estimated, albeit not without controversy, around 15%.[136] These barriers to employment lead to bad public policy as wages are artificially inflated and vulnerable groups are denied access to the trades. This negative public policy effect is supported by a number of studies which show that increased regulation does not improve outcomes but raises prices for consumers and wages or earnings for practitioners Services are not improved and the objectives of the College in attracting underrepresented and disadvantaged groups are not achieved. [137]

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NOTES

[128] O'Grady at p. 3; cf Armstrong Report at p. 136: The Apprenticeship Act was amended to provide for compulsory provisions in 1944. Although the impetus for establishing the Apprenticeship Act was a voluntary organization of construction trade unions and employers, no compulsory trades in construction existed until 1964 – after barbers were established as a compulsory trade (Armstrong Report pp. 136-138).

[129] O'Grady at p. 7

[130] O. Reg. 175/11 s. 5

[131] O. Reg. 275/11 s. 11-12.

[132] O'Grady at p. 6.

[133] Ibid

[134] Gomez at p. 17.

[135] Ibid and the studies cited therein.

[136] Ibid

[137] See Gomez at pp. 17-20 and the studies cited therein. See Gomez at pp. 20-23 regarding evidence on the lack of improvement of services as a result of licensing. See as well the response to Question 4, above.


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?

It is a reasonable assumption that some trades perform functions inherently hazardous to themselves or other workers, or which pose a risk of harm to the public; but there is no direct correlation between those types of hazards and certified trades in general.[138] Other workers engage in inherently hazardous work; other workers are responsible for protecting public safety; and many of those workers are members of Local 183 who do not belong to a certified trade.[139]

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NOTES

[138] See Questions 7 and 8, above on safety issues and SoPs; see generally Question 2 under the heading, "Health and safety and public health".

[139] See Question 6, above regarding health and safety training at the Local 183 Training Centre.


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?

As noted above, the concept of "core elements of a trade" does not equate with prevention of risk of harm or protection of the public interest in terms of public safety or occupational health and safety.

A better approach is to determine what tasks present a risk of harm, and determine whether there is no other way to address the risk than prohibiting non-members of the College from performing those tasks, as set out in Questions 5, 7-10 above, and 20-24 below.


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 is inadequately designed and does not provide an appropriate process for dealing with the issues. There are better models that exist and that can serve as examples of success for the College. There are serious issues with the College’s current model, both in terms of the structure and the composition.

Flaws in the Existing Model

Structural bias in the College

The College’s classification review process is unusual in that it allows the College to effectively expand its own jurisdiction by classifying trades as compulsory. As noted above, because it is self-funding, it has a built-in incentive to expand its membership.

Such a process or capacity is not found in the other self-regulating professions in Ontario. For example, the Ontario College of Teachers does not have any mechanism that allows it to expand its membership and take jurisdiction over previously unregulated educational professionals. Similarly, self-regulating health care professionals ranging from physicians to massage therapists have no ability under the Regulated Health Professionals Act to review related professions and decide that membership in their respective colleges should be mandatory. The Law Society of Upper Canada provides an example of the general inability of professional colleges to expand their jurisdiction in the regulation of paralegals. Despite the support of both the government and paralegals, the Law Society was unable to simply internally review the paralegal profession and decide to regulate it. The provincial legislature had to pass a bill amending the Law Society Act in order for paralegals to fall under the purview of the Law Society.

This structural bias is particularly troubling given the College's unique ability to regulate non-members by enforcing prohibitions on performing work classified as compulsory.[140]

Bias and conflict of interest among the decision-makers

As noted elsewhere, making trades compulsory restricts entry into the profession and creates an artificial scarcity allowing those holding the reigns to create a monopoly and charge wages above the competitive norm,141 giving incumbents an incentive to “pull up the ladder behind them”.[142] The same incentives apply to groups of specialty contractors who employ members of certified trades: the wage premiums they pay can be passed on to consumers if the effect of compulsory certification is to reduce or eliminate their competition.[143]

As a result, when the process of review is controlled by members of trades and industry parties with a vested interest in protecting their work from competition, the decisions will not reflect the public interest contemplated in OCTAA. The Ratio Review decisions exemplify this: although the fundamental reason for apprenticeship is training, very few of the submissions or decisions address the adequacy of ratios for training in any detail, if at all.[144]

The structure of decision making in the College review process provides no safeguards to address these areas of conflicting interest and bias.

Trades Boards

The process of reviewing a trade’s classification is initiated and driven by Trades Boards. There is a lack of transparency in regard to the members of trade boards, as they are appointed by the Appointments Council under the Act.

Local 183, which has sufficient numbers of carpenter members in the residential framing sector that its bargaining partner, the Residential Framing Contractors Association, is accredited,[145] has no representation on the Carpentry Trade Board.

Rather, the employee members of the Carpentry Trade Board are all members of the United Brotherhood of Carpenters and Joiners of America.[146] As well, trade board decisions have been made where the employer member was the chair and abstained from voting.[147] As such, decisions coming out of Trade Board deliberations, including requests for reviews of apprentice ratios and classification, are easily co-opted by members of particular trade unions with particular interests.

Roster of Adjudicators

There is also a lack of transparency in regard to the adjudication panels and the members drawn from the construction trades experience roster. The members of construction trades review panels often have a vested interest in the outcome of the review and do not accurately reflect the trade’s membership. There are no Local 183 members on the Roster of Adjudicators. There have been twenty four decisions on ratio review and two review panels struck for classification reviews. The sole LIUNA member of the roster, Terry Varga, has never been selected for a review panel.[148]

Selection of Review Panels: Board of Governors and Divisional Board

Pursuant to the Act, Review Panels will be composed of three members chosen from the roster of adjudicators, two of whom are chosen by the Divisional Board for that sector and one of whom is chosen by the Board of Governors.[149] Panel member are meant to be “capable, neutral and impartial.”[150] However, allowing the Divisional Boards to select the review panel adjudicators is problematic.

In the construction sector, there is one Divisional Board that is composed of two employee representatives, two employer representatives, and a member of the Board of Governors from the construction sector acting as the chair.[151] Although not required by statute, the College has made it a requirement that the employee members be “prospective journeyperson members of the College”[152] -- a good illustration of the College's incentive to ensure decisions are made to increase College membership rather than to promote public interest.

While the structure of the Divisional Board assumes competing interests between employees and employers, it does not address the competing interests between different trade unions, employer associations, or unionized and non-unionized tradespeople. The current composition of the construction Divisional Board favours compulsory trades.[153]

Divisional Board members are allowed to serve for a term of up to three years.[154] Moreover, members of Divisional Board may serve for consecutive terms up to six consecutive years, after which he or she may be reappointed following a one year absence.[155] Such a set-up allows for the interests of certain trades that are represented on these Divisional Boards to become entrenched, to the detriment of trades without such representation or clout. This is illustrated in the rollover of Construction Divisional Board appointments in 2014.

The role of the Board of Governors in selecting review panel members is also problematic. The members of the Board of Governors with a construction background are disproportionately representatives of the United Brotherhood of Carpenters and their bargaining partners, and representatives of the International Brotherhood of Electrical Workers and electrical contractors.[156] There is no representative of Local 183 (or LIUNA, for that matter) on the Board of Governors despite Local 183's representation of employees in almost all trades and sectors of Ontario's construction industry.[157] This structural flaw reflects the College’s focus on trade unions rather than the trades, a focus which is contrary to the public policy underlying the Act.

The OLRB/Adjudicative model does not address the aligned interest of parties

The College’s process is also out of sync with its mandate because its process replicates the OLRB’s process, which in this context does not ensure that the review panels have credible and impartial evidence before it.[158] Every other province uses an inquiry process in which the reviewing panel has the ability to commission independent research on its own.

The problem is that the OLRB process is designed for an adversarial context where unions or employees are opposed in interest to employers. In that model, it makes sense to have a tripartite panel where the conflicting union and employer interests are represented on the panel; and it makes sense to expect that the parties will provide the best evidence they can in order to advance their opposing interests.

In the College review process, the interests are aligned differently. Employers in bargaining relationships with trade unions representing certified trades often have a common interest in eliminating their competition through the imposition of stricter licencing requirements. The Sprinkler Fitters case provides an example: the aligned groups in favour of making the trade mandatory were:

"(i) the Sprinkler and Fire Protection Installer Trade Board … which also included letters of support from the Ontario Sheet Metal Workers and Roofers Conference and the Millwright Regional Council of Ontario of the United Brotherhood of Carpenters and Joiners of America …
"(ii) the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 853 … jointly with the Canadian Automatic Sprinkler Association …
"(iii) the Ontario Pipe Trades Council …
"(iv) the Provincial Building & Construction Trades Council of Ontario
"(v) the Ontario Plumbing and Steamfitting Trade Board …
"(vi) the Facilities Mechanic/Facilities Technician Trade Board …
"(vii) the Ontario Association of Fire Chiefs…
"(viii) the Ontario Municipal Fire Prevention Officers Association …
"(ix) the Ontario Professional Fire Fighters Association …
"(x) various sprinkler installation contractors (both union and non-union)"[159]

Similarly, in the Electricians Ratio Review decision, unions and their bargaining partners were aligned in interest: the Greater Toronto Electrical Contractors Association was aligned with the IBEW Local 353 in proposing no change to the ratio; the IBEW Construction Council of Ontario and the Electrical Contractors Association of Ontario were aligned in proposing "a slight 'tweaking' of the ratios at the lower end allowing more apprentices with few journeypersons".[160] These alignments indicate that opposing interests, to the extent they existed within the IBEW and its bargaining partners, existed along geographical lines rather than between employer and union groups.

The remedial tools are too blunt

Classification Review panels have only one choice of remedy: compulsory or voluntary status. The Ratio Review panels have a more refined ability to vary ratios but their decisions are province-wide, sector-wide decisions.
This restrictive approach ignores that sectors differ and that what may be appropriate in one sector is not appropriate in another sector. This approach also overlooks regional differences. Labour supply, for example, is not uniform across Ontario and there are undeniable contrasts between the Greater Toronto Area and the rest the province. It does not allow the College to make decisions that address labour market issues in a flexible way. That lack of flexibility is contrary to the public interest.[161]

Better Models Exist

The model developed for Ontario’s health care professions, HPRAC, would provide a more transparent and fair process for the College. HPRAC is tasked with deciding whether unregulated health professionals should be regulated. Its process does not involve a variety of panels selected from a roster drawn from the professions with an interest in the outcome. Instead, HPRAC is composed of a consistent group of people without vested interests in the outcome. HPRAC is meant to be independent of the provincial government, the various regulated health professionals and their colleges, and those that have a vested interest in the Council’s decisions.[162]

Public servants or persons who are or have been a member of a health professions college cannot be appointed to HPRAC.[163] This structure ensures that members of the health professions are not allowed to make decisions regarding their own regulation or that of rival health professionals. Such a model can be applied to the College with the creation of an advisory council – whether within the College or, like HPRAC, as an independent body, to deal with issues of ratios and classification. What is crucial is that the members of the council are impartial and without ties to any particular trade.

The province of Manitoba serves as a model in terms of the research and information necessary for a panel to make an informed decision on classification. Under Manitoba’s Apprenticeship and Certification Act, before the Minister recommends that the Lieutenant Governor in Council designate a trade as a compulsory certification trade, the minister must consult with, among others, any the minister considers appropriate, and be satisfied that compulsory certification is beneficial.[164] When reviewing the sheet metal workers' trade, the province of Manitoba commissioned independent research.[165] As has been noted, there is an obvious analytical gap in the College’s structure:

"…the College appears to have no reliable way to bring rigorous economic analysis to bear on either ratio or classification decisions. There is no internal research capacity. There is no practice of commissioning studies. Indeed, to the degree that economic analysis enters into evidence, it is filtered by the proponents that make submissions to panels. The absence of independent, rigorous economic analysis in making decisions on ratios and the classification is surely at odds with the College’s obligation under sec. 10 of the Ontario College of Trades Act."[166]

Allowing the Classification Review Panel to commission or undertake its own independent research with regard to classification and ratios is necessary to ensure “rigorous and impartial economic impact analysis.”[167]

Fundamentals of any model of Classification Review

Certified trades have existed in Ontario since 1928. The College was instituted not because of any crisis. It was not designed to prevent people from working, or to create inviolable jurisdictional barriers to employment. It was designed to address long term goals of skills development and skilled trades shortages.

An Impartial Review Panel

The review panel should have three key features:

- It should be impartial;
- Its processes should be based on a public inquiry model, not an adversarial/adjudicative model;
- It should have the remedial power to determine that tasks not trades be made compulsory, and should be able to tailor its remedies to address different circumstances in different regions and sectors.

Ideally, the review panel should be independent of the College and the government, similar to HPRAC.

However, whether or not it is part of the College, the appointments to the review panel should share the criteria for appointment to HPRAC: persons who are or were members of the College should not be on the review panel. The members should be impartial and without ties to any particular trade.

The panel could be a permanent one (or a single person); but if a roster is maintained, the selection of a panel from members of the roster should be a mechanical one, based on rotation and scheduling rather than the decisions of interested parties within the College.

Stakeholders outside of the College should have the ability to challenge the status of members of the review panel (or roster) when appointments are made.

Onus on the applicant for compulsory status

In view of this, an applicant seeking compulsory status should have a heavy onus, regardless of whether compulsory status is sought for an entire SoP, core functions or, as recommended here, only for those tasks where performance by non-certified persons is harmful to the public interest and the public interest cannot be protected any other way.[168]

Regardless of the self-governing, self-funding nature of the College, classification of a trade as compulsory is a state action. It is not a matter of collective bargaining, or market forces. It is an applicant gaining status to be protected by the legislated prohibitions in OCTAA and gaining status to use the College's legislated enforcement arm to enforce those prohibitions.

An applicant who seeks compulsory status should be required to demonstrate on the basis of clear and cogent evidence (at least) why it is entitled to a regulatory prohibition on others performing work.

Fees

Given the self-funding nature of the College, and the enormous economic benefits to applicants who are successful in attaining compulsory status, the classification review process should be funded primarily by fees on the applicant seeking a change to the status quo. The fees could provide the decision-maker with the resources to obtain necessary evidence to make a reasoned decision.

Notice to stakeholders and adequate time for submissions

In view of the lack of urgency to reclassification, there is no reason for the College to make snap decisions on the basis of inadequate evidence and without full input of all stakeholders. Classification reviews should be made with ample notice to all stake holders. A Trade Board recommending classification review will have had all the time it needs to put its case together. Stakeholders with opposing interests should be provided with adequate time to gather evidence, including expert evidence, and to develop submissions.

To date, the College has not allowed enough turnaround time for interested parties to meaningfully represent their position. For example, the news regarding the Sprinkler and Fire Protection Installer Trade Classification Review was released on October 3, 2013 and written submissions were due by November 8, 2013. Similarly the Construction Millwright review was announced on February 28, 20014 and the deadline for submissions was set for April 14, 2014. Such a short window of time is insufficient to gather evidence, whether expert or otherwise.

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NOTES

[140] See Question 4, above, and Appendix "G", "Enforcement of non-members among regulated professions in Ontario".

[141] Gomez at p. 17.

[142] Ibid.

[143] The alignment in interest of employer groups and unions in Review decisions is discussed below under the heading "The OLRB/Adjudicative model does not address the aligned interest of parties".

[144] Cf. the Electricians ratio review, http://www.collegeoftrades.ca/wp-content/uploads/RR18-2012-Electricians-Ratio-Review-Decision-Report-Signed-Final-July-2-2013.pdf, in which the IBEW Construction Council of Ontario and the Electrical Contractors Association of Ontario argued that "First, apprenticeship is a job and only secondly is it an educational opportunity" (at p. 14).

[145] See the discussion of accreditation in Question 6, above.

[146] http://www.collegeoftrades.ca/wp-content/uploads/ConstructionTrade-Board.EN-14-10-201412.pdf

[147] E.g. the Carpenter's Trade Board decision to seek compulsory status for General Carpenters: http://www.collegeoftrades.ca/wp-content/uploads/Minutes-General-Carpenter-TB-February-20-2014.pdf

[148] http://www.collegeoftrades.ca/about/review-panels/ratioreviews

[149] OCTAA s. 21(4)

[150] http://www.collegeoftrades.ca/about/review-panels

[151] OCTAA s. 19(1) 19(3)

[152] http://www.cot-appointments.ca/New/engPosDetails.html.

[153] Two of the three employee members are representatives of trade unions who represent members of compulsory trades, the chair (James Barry, president of the IBEW Construction Council of Ontario and Joe Dowdall, a representative of the International Union of Operating Engineers).

[154] OCTAA s. 19(4)

[155] OCTAA s. 19(5), 19(6)

[156] Ron Johnson is the Deputy Director of Interior Systems Contractors Association of Ontario and the Interior Finishing Systems Training Centre , which are bargaining partners with the UBCJA and the Painters. Pat Blackwood was formerly an executive at Unifor/CAW and worked as a millwright in both construction and maintenance. James Barry is the president of the IBEW Construction Council of Ontario. Tom Carvin is a manager at Ontario Power Generation’s Nuclear Programs and Training Department and is involved in hiring and training apprentices and journeypersons. Don Gosen is president of Gosen Electric Limited and a licensed Construction and Maintenance Electrician. Ucal Powell is the Executive Secretary-Treasurer of the Carpenters’ District Council of Ontario.

[157] See Question 6, above.

[158] Cf the Review Panel in the Trade Classification Review Sprinkler and Fire Protection Installer decision TCR2013-1 SFPI, at para. 23, in which the panel expressed significant concerns with quality of evidence.

[159] Trade Classification Review Sprinkler and Fire Protection Installer decision TCR2013-1 SFPI, at para. 4.

[160] http://www.collegeoftrades.ca/wp-content/uploads/RR18-2012-Electricians-Ratio-Review-Decision-Report-Signed-Final-July-2-2013.pdf at pp. 3-4.

[161] See Questions 4 and 17, above.

[162] http://www.hprac.org/en/about/mandate.asp

[163] RHPA, s. 8

[164] Apprenticeship and Certification Act, C.C.S.M. c. A110, s. 25(2)

[165] The research was provided by Prism Economics and Analysis (J. O'Grady, personal information).

[166] O’Grady at p. 6

[167] Ibid at p. 9

[168] See Question 22, below.

21. How should expert opinion be obtained?

As described above, expert evidence needs to be brought to the attention of decision-makers in an independent and impartial matter. Whether the decision-maker is an advisory council, as recommended above, or a College review panel it should be able to commission expert evidence of its own volition. It is in the interest of the public that decision-makers have such a mechanism. The evidence, expert or otherwise, submitted by interested parties has proven to be of little assistance in reaching a fair decision.

As noted above, funding of the expert evidence relied on by the decision-maker could be provided through a fee-based application system.


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

The criteria in O. Reg. 458/11 are not directed towards the purposes of OCTAA and have proven difficult to apply.

The criteria are not focussed on the purpose of the OCTAA

The criteria enumerated in O. Reg. 458/11 for trade classification reviews are also found in the ratio review criteria; the focus in section 2 is the effect on classification or reclassification of the trade whereas the focus in section 3 is the effect of the journeyperson to apprentice ratio on the trade.

There is no obvious rationale for using the same criteria for ratio review and classification review.

Given the purposes of the OCTAA, decisions about ratio review should be based on the training purpose of apprenticeship, and based on the question: what is the best ratio to maximize learning opportunities at the apprentice level?

In decisions about classification review, on the other hand, the fundamental question should be whether there is public interest so great that non-members of the College should be prohibited from making a living by engaging in the tasks in question. Ratio reviews do not involve the same prohibition because they apply to both voluntary and compulsory trades.[169]

The use of the same criteria for such different purposes indicates that they are not appropriate.

The numerous ratios reviews conducted so far have shown that ratio review panels have difficulty applying the criteria. In fact, one panel essentially scrapped the criteria in favour of a purposive approach based on the statute.[170]

The criteria address issues which are governed and enforced by other regulatory regimes

Pursuant to section 2(6) of the O. Reg. 485/11 a classification review panel must consider the following:

1. The scope of the practice of the trade
2. 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.
3. The effect, if any, of the classification or reclassification of the trade on the environment.
4. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public.
5. The classification of similar trades in other jurisdictions.
6. The supply of, and demand for, journeypersons in the trade and in the labour market generally.
7. The attraction and retention of apprentices and journeypersons in the trade.

In relation to the effect on the health and safety of apprentices and journeypersons, we direct you to our submissions on the nature of enforcement. Enforcement of the Act should remain in the hands of MOL inspectors, whose primary mandate is protecting health and safety. As such, this criterion adds little to the classification issue since it is undertaken by a different, better-equipped regulatory scheme.

The effect of changes to the classification of a trade on the environment is also an unhelpful criterion. In relation to construction, environmental protection is addressed and managed by a different regulatory scheme. The Ministry of the Environment and the various environmental protection statutes already assume the role of regulating trades when it comes to impacting the environment.

The latter four factors appear more designed towards creating cartels and monopolies than developing more skilled workers. Criterion number 4, economic impact, places the interest of members of the College ahead of the public. Economic impact on non-members of the College should be the primary consideration in reclassification, in order to protect public interest. Criterion number 5, classification in other jurisdictions, is only relevant to the extent that if a trade is not classified as compulsory in another jurisdiction, and there is no demonstrable harm to public interest in that jurisdiction, then it is probably unnecessary to classify it as compulsory in Ontario. However, the reverse is not the case: the classification of a trade as compulsory in another jurisdiction could indicate nothing more than the power of the interest groups in the other jurisdiction who benefitted from compulsory status. Criteria 6 and 7 might pertain to a robust right-to-title regime, but do not justify imposing prohibitions on who can perform the work.

Conspicuous by its absence from these factors is the past practice in various regions and sectors in Ontario. It should be a consideration that, e.g., there are more uncertified, unionized workers in the GTA performing carpentry work than there are certified carpenters. The uncertified workers persons are members of Local 183. They are trained (at the Local 183 training centre), and work safely, efficiently and to a high standard of competence, as demonstrated by the success of Local 183’s bargaining partners in gaining market share.

Review Panels have difficulty applying the criteria

The less-than-useful nature of these criteria has been noted in ratio review panel decisions. In the Sprinkler & Fire Protection Installer ratio review decision, dated July 10, 2013, the panel noted:

"The problem that every Review Panel has focused on is that the criteria are, for the most part, fairly general criteria and hence difficult to quantify or prioritize. Where they are susceptible of precise measurement, the data is very difficult to find and what there is has proved difficult to rely on. This suggests both a need to give some weight to the anecdotal or impressionistic evidence we received, and to be cautious about the entire factual foundation for any analysis."[171]

This concern is particularly the case with the health and safety and environmental factors as there is a lack of useful data to provide any meaningful bases for consideration. In the relatively rare cases where the review panels have made finding on these criteria, they have done so on the basis of “intuition” rather than empirical data. For example, in the Drywall, Acoustic and Lathing Applicator ratio review decision, the panel noted:

"We are left with what is, in our view, intuitive; namely that a workplace that has employed with it a large number of experienced tradespeople will be safer than a similarly situated workplace that has employed within it a smaller number of experienced tradespeople …" [172]

Similarly, the Sprinkler & Fire Protection Installer classification review decision, the panel expressed significant concerns with the quality of evidence:

“This lack of clear evidence of a connection has troubled us significantly… Frequently in the ratio reviews, panels when in doubt with respect to the impact of this criterion erred on the side of safety." [173]

Erring on the side of safety without evidence is not a defensible position. The precautionary principle should only be applied where the evidence does not satisfy the tribunal that a particular scenario is safe. However, it must be an evidence-based decision because the effect of the decision could deny people the opportunity to work. In the Sprinkler & Fire Protection Installer classification review, the evidentiary basis provided for reclassification was weak. It consisted of repeated references in the submissions of various parties aligned in interest [174] to the same four examples of improper maintenance or installation of sprinkler (viz. improper maintenance at an Ottawa nursing home, sprinkler heads installed above a suspended ceiling in a Peterborough sports complex, sprinkler heads installed in a ceiling without pipes connected to the heads in a Toronto office, and a system filled with antifreeze in Kingston). There was no examination of whether the installer had certificates of qualification or not. On their face, at least three of the above-noted examples do not indicate a problem with the qualifications of the individual installers. The Ottawa nursing home example was a matter of maintenance, which may or may not have been a failure to maintain rather than improper maintenance. The Peterborough sports complex example appears to be a matter of the design of the system itself, not installation. The Toronto office example appears to be a matter of failure of oversight or inspection to determine the work was complete. A certificate of qualification is not necessary for a trades person to notice if sprinkler heads are connected to pipes. There were also repeated references to four examples of fires in nursing homes without sprinkler systems. Again, these example have no connection to the quality of installation. Apart from these repeated examples, the only other evidence submitted was to the effect that fire is bad, smoke contains noxious chemicals and that there is an increasing market for sprinkler systems due to regulatory requirements.
None of this “evidence” speaks to whether the trade should be compulsory. Ultimately, the review panel found there was disinterested evidence of a significant public safety issue:

"23 … Certainly the first responders (who have no apparent economic self-interest in who or how or at what price sprinkler systems are installed other than they function properly) have intervened to strongly support that the trade be made mandatory …

"28 … Though troubled by the shortcomings of the evidence here, ultimately, we are influenced both by the strong support of the request by the first responders, the Fire Chiefs, the Fire Fighters and the Fire Prevention Officers, and that when sprinkler systems are so indisputably effective in dealing with the potentially catastrophic hazards of fire, the intuitive logic of requiring those who install and maintain the increasing variety of sprinkler systems with their increasing complexity to hold a mandatory Certificate of Qualification. In fact, the Fire Chiefs said solely as a matter of public safety, sprinkler fitters should be made a mandatory trade"[175]

The ultimate decision and the factors considered by the panel reflect the approach taken by HPRAC when deciding whether a health profession should be regulated; namely, one must show harm that needs to be prevented.

The difficulty with the lack and quality of evidence and the review panels concerns could also have been addressed by the second factor considered by HPRAC: whether there is another way to achieve the goal of protecting public health and safety.

A Better Approach: Risk of harm and adequate alternatives

The College should use the example of HPRAC as a model. HPRAC uses a two-part assessment to decide whether it will recommend a health profession for regulation. The primary criterion is called the “risk of harm threshold”. Once the primary criteria are met with “relevant, verifiable evidence” HPRAC moves on to the secondary criteria, i.e., considering the appropriateness and effectiveness of regulation: "whether regulation under the RHPA is, in fact, the most appropriate and effective means to protect the public."[176]

The organization of primary and secondary criteria under HPRAC provides a simple and clear guide to classification review: is there a risk of harm without compulsory status, and is there another way to protect the public interest? That is, are there adequate alternatives to compulsory status?

In making the determinations about risk of harm, the HPRAC assessment model expressly considers the nature of supervision of the profession – something that is highly relevant for construction workers who generally are subject to supervision, whose work may be subject to inspection, and who work from plans that have been prepared by others.

The factor of adequate alternatives to prevent harm is critical when dealing with limiting employment opportunities, particularly in sectors that traditionally employ many disadvantaged groups. The College should take great care to ensure that its members are not unreasonably denied the ability to work in their chosen trades. An overhaul of the College’s criteria is necessary to keep the public interest and safety at the forefront of classification decisions.

A rigid approach to classification of a trade as compulsory ignores the complexity of the economy. As John O’Grady has noted, expanding the number of compulsory scopes of practice will create rigidities in the labour market that are hurtful to the economy and public interest.[177] Flexibility, as seen in the industrial exemption, is required. A one-size fits all approach to occupational regulation is not appropriate.[178]

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NOTES

[169] Cf. O. Reg. 175/11s. 2(4) (construction trades subject to ratios) and 2(5) (compulsory trades in the construction sector).

[170] See RR16-2012 (Residential (low rise) sheet metal installer; Sheet metal worker), May 24, 2013 at paras. 6-9, in which the Review Panel considered the difficulty previous ratio review panels had with the O. Reg. 485/11 criteria and instead focussed on the objects of the OCTAA.

[171] RR21-2012 (Sprinkler & Fire Protection Installer), July 10, 2013 at para. 6, citing the ratio review panel in RR-16-2012 (Sheet Metal Worker).

[172] RR17-20102 (Drywall, Acoustic and Lathing Applicator) at p. 12 – 13.

[173] Trade Classification Review Sprinkler and Fire Protection Installer TCR2013-1 SFPI at para. 23

[174] See the UA Local 853 and Canadian Automatic Sprinkler Association submissions for the ratio review and are repeated in the Ontario Pipes Trades submission at p. 2 [t 46] , the Trade Board submission (at pp 8-10) [t48], the Ontario Professional Fire Fighters Association submission (at pp 15-16 , the submission of Jeff Hubers (owner of Certified Fire Prevention) at pp. 2-3, UA Local 853 and Canadian Automatic Sprinkler Association submissions (pp. 12-13).

[175] Trade Classification Review Sprinkler and Fire Protection Installer TCR2013-1 SFPI at paras. 23 - 28

[176] HPRAC Criteria and Process, pp. 2-3

[177] O'Grady at p. 7

[178] Ibid


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

See Question 22


24. Are the existing criteria the right criteria?

See Question 22





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. See Question 6 above. As noted above, overlap between trades is the norm. SoPs are (or should be) based on occupational standards, but "clear-cut boundaries are neither the intention nor the natural outcome of occupational standards."[179]

The OLRB's jurisprudence on jurisdictional disputes illustrates the difference between work assignments in practice and the training and maintenance of standard functions of the SoPs.[180]

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NOTES

[179] O'Grady at p. 4.

[180] See Wiseman and Richmond for a survey of this jurisprudence.


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

No. Jurisdictional disputes often arise because the parties disagree as to the characterization of the work in dispute, which has a bearing on whether it is considered "core" by either party.

For example, material handling associated with installation of solar panels on solar farms may be considered core by both the Electricians and the Labourers, and may be found to be core to both trades.[181] The carpentry portion of formwork is considered core by both Carpenters and Labourers; but the work assignment depends on the context – whether it is interior or exterior, as well as considerations of sector and geographic area.[182]

Both the Board and MOL have recognized that there are overlaps in skills and tasks without distinguishing how peripheral or incidental they are. In its decision in Action Group Inc. the Board stated[183]"

"If work is found in the definition of two different trades, even if one of them is compulsory and the other is not, members of either trade can perform the work."

Similarly, the MOL, in guidelines quoted in a Board decision, noted[184]":

"Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades…We must recognize that either trade could legitimately do this job. If there is a dispute in that regard it should be dealt with as a jurisdictional matter"

The two bodies most experienced in dealing with overlapping scopes of trades have not recognized or created a dichotomy between peripheral and core elements of a trade. Rather, they have described the overlaps in more general terms, implying that it is the function of a trade itself that is significant.

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NOTES

[181] Black & MacDonald Ltd., 2013 CanLII 76431 (OLRB) at para. 72-74 and 91-94; H.B. White Canada Corp., 2014 CanLII 66574 (OLRB) at paras. 62 and 67

[182] PCL Constructors Canada Inc., 2014 CanLII 10697 (OLRB) at para. 45, 50-53; UCC Group Inc., 2014 CarswellOnt 12808 (OLRB) at paras. 9-13

[183] Action Group Inc., 2010 CanLII 17736 (OLRB), cited in Wiseman and Richmond, p. 11, para. 28

[184] July 18, 1994 Ministry of Labour Policy regarding the TQAA, as quoted in Buttcon, 2000 CanLII 13479 (OLRB), citied in Wiseman and Richmond, p. 12, para. 30

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.

It is difficult to understand from a legal perspective why the College would not defer to the OLRB in jurisdictional or work assignment disputes.[185] The OLRB is a specialized tribunal whose empowering legislation specifically mandates it to deal with jurisdictional disputes.[186] It has a long history of dealing with jurisdictional disputes and more specifically, of dealing with the role of the trades certification process under the OCTAA and its predecessors in jurisdictional disputes and the determination of the scope of trades for the purpose of determining craft-based bargaining units.[187] Indeed, the legislative policy of Ontario is that any determinations made by the OLRB in respect of questions within its jurisdiction are "final and conclusive for all purposes", subject to its power to reconsider.[188]

The OLRB process creates a degree of certainty with respect to work assignment that enhances the stability of the construction industry in Ontario, in contrast to the U.S litigation-based approach which " creates uncertainty as to obligations, liabilities and remedies. It is a weakness in the American approach to workplace regulation, not a strength."[189]

The Board was granted the statutory authority to deal with jurisdictional disputes in 1966, and has been doing so successfully since.[190] This granting of jurisdiction reflects a legislative policy that such disputes should be handled by the Board.[191] The Board readily recognized that the scopes of practice described in the TQAA regulations overlapped and took to addressing the issue purposively and contextually. It recognized that the regulations needed a practical approach, stating that "The interpretation of one or more regulations must be a functional one."[192] The Board's approach to OCTAA regulation has been similar.[193]

The system developed by the Board and the resulting jurisprudence have been accepted by the labour relations community because it is expeditious, fair and based on the Board's genuine expertise.[194] The Board has resolved jurisdictional disputes "consistently with the purposes of the trades regulation regime" by considering those factors which relate to the main purpose of trade regulation; safety, skills and training.[195] As well, the Board's jurisprudence takes into account area practice, which implicitly addresses safety, skills and training by acknowledging that having a practice of having certain trades perform certain work indicates "either that the workers in question are adequately trained to perform the work, or that specialized training is not required for the safe performance of that work."[196] The Board has also demonstrated its experience in differentiating between jurisdictional disputes and "bona fide trade regulation issues."[197] The Board's jurisprudence is consistent with Ontario's trade regulation regime and ought not be ignored. The College's enforcement regime should not undermine the jurisdictional dispute resolution system that the Board has cultivated to maintain harmony in the construction industry.

In particular, the OLRB has developed a model of dealing with jurisdictional conflict that avoids putting employers with competing contractual obligations in a situation where they have to pay twice for the work performed by one union but claimed by another.[198]

One of the signal features of OLRB jurisprudence on jurisdictional disputes is the acknowledgement of flexibility in the way the construction industry works in Ontario and how that industry has developed efficient and effective work processes. It does so by putting a great deal of weight on "area practice" and "employer practice". [199]

Thus, with respect to the factor of "area practice", the OLRB considers the practice of employers within the sector and within the geographical area in which the work assignment took place. What works in GTA residential construction may not be applicable to, e.g., the Bruce Nuclear facility or an office building in Ottawa; and the OLRB recognizes that. The factor of "employer practice" allows the OLRB to consider the specific ways in which the employer making the assignment has developed its work processes.

In short, the jurisdictional determinations of the OLRB are based on the specialized practices and needs of the construction industry, and include consideration of the role of the regulatory regime of OCTAA and its predecessors.

There is an old saying about trade specialization: A cobbler should stick to his (or her) last. The College was established to be a self-governing body to promote training and maintain standards in the trades. That is what it can potentially be good at, and that is what it should do. It should not set itself up as an alternative to a specialized tribunal whose specialty is labour relations including jurisdictional disputes between trade unions. Trades and trade unions are two different things.

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NOTES

[185] The incentive of incumbents to use occupational regulation as a means of creating monopolies has been noted passim, which provides an extra-legal reason why the College would not defer.

[186] Ontario Labour Relations Act, s. 99.

[187] See C. Wiseman and L. Richmond (2015).

[188] Ontario Labour Relations Act, s. 114(1).

[189] O'Grady at p. 7.

[190] Wiseman and Richmond, p. 14, para. 37

[191] Ibid

[192] Action Group Inc., 2010 CanLII 17736 (OLRB); cf Wiseman at p. 10, para. 27.

[193] Weinmann Electric Limited / Utility Installation Limited, 2014 CanLII 80647 (OLRB); Delta Controls Inc., 2014 CanLII 24673 (OLRB)

[194] Wiseman and Richmond, pp. 14-17, paras. 38-42

[195] Wiseman and Richmond, p. 23, para. 56

[196] Ibid

[197] Wiseman and Richmond, pp. 24- 25, para. 61

[198] Robertson Yates Corporation Limited, [1995] OLRB Rep. February 158 at para 28: "Damages should be restricted to those circumstances in which the Board concludes that a contractor/employer did not act reasonably, not those circumstances in which an employer rea-sonably was wrong"; The Roberts Group Inc., 2004 CanLII 35978 (OLRB); B.G. High Voltage Systems Limited, 2012 CanLII 56704 (OLRB)

[199] Cynatime Canada Inc., 2002 CanLII 17687 (OLRB) at para. 24; Ecodyne Limited, 1997 CanLII 15496 (OLRB) at para. 16; Groff & Associates Ltd, 1994 CanLII 9843 (OLRB) at paras. 12, 28





Section E - General Response and Comments

28. Please provide additional comments below, if any.

Appendices Referenced - Please note that due to formatting issues some tables have not been reproduced below.

APPENDIX A - "The Public Interest and the Ontario College of Trades: A Labour Economics Perspective" by John O'Grady

John O’Grady Consulting Ltd.
106 Lauder Ave
Toronto, ON
M6H 3E5
TTel: 416-652-0456
Fax: 416-652-3083
Email: ogrady@ogrady.on.ca
Web Site: www.ogrady.on.ca

The Public Interest and the Ontario College of Trades: A Labour Economics Perspective

Introduction and Purpose

I have been asked to prepare on ‘expert opinion’ on the public interest and the Ontario College of Trades. My professional expertise is in the area of applied labour market economics. Labour economics is a sub-field of the economics discipline that focuses on the operation of the labour market. A resume setting out my professional experience is attached to this report.

This report looks at the public interest in the Ontario College of Trades through a labour economics lens. Specifically the report addresses:

• why the skilled trades need to be regulated,
• the central importance of occupational standards,
• the public interest in occupational standards,
• the relationship of occupational standards to public safety,
• the relationship of occupational standards to workplace safety,
• structural and analytical gaps that impede a sustainable supply of skilled labour,
• the implication of the complexity in the economy for occupational regulation, and
• the dangers in parallel and conflicting systems of standards and enforcement.
hhe final section of the report suggests priorities to align the College with the public interest.

Why Regulate the Skilled Trades?
While we do not have comparable data for Canada, an American study estimates that approximately 35% of the U.S, labour force is subject to some form of statute-based regulation. At one end of the spectrum, there is restricted title which limits the use of an occupational designation to persons who are certified by a designated entity. At the other end of the spectrum are licensed occupations where both the use of title and the practice of a specified scope of work are limited to persons who are certified. Trends in Canada are probably similar to those in the United States.

In Ontario, the skilled trades have been regulated since 1928. (Ontario, in fact, was the first Canadian jurisdiction to introduce a regulatory framework for the skilled trades.) From a labour economics perspective, the first question to ask is why is there a need to regulate the skilled trades? While perhaps around 30% of the labour force (using U.S. data) may be subject to occupational regulation, most workers are not. In those occupations, individuals acquire the skills to which they are suited and obtain employment that is broadly relevant to those skills. For the most part, the way in which these individuals acquire their skills and describe their competence is not subject to any regulation. Nor, in the main, is the assignment of work to them by their employers constrained by any regulations. What, then, are the characteristics of the skilled trades that make it appropriate to establish a regulatory framework?

The most important characteristic of the skilled trades is that competence requires on-the-job learning. On-the-job learning may not be sufficient to create competence, but competence requires significant on-the-job learning and practice. In this respect, the skilled trades are different from many other occupations where classroom-based training creates a strong initial foundation of competence that is subsequently expanded through experience. In the skilled trades, classroom-based learning is secondary, while on-the-job learning is primary.

The centrality of on-the-job learning in the skilled trades creates a problem. There is no reason to believe that someone learning a trade solely through on-the-job learning will acquire competence in the full range of skills and theory that are needed in that trade or more generally that are needed to ensure broad employability. Indeed, the opposite is likely to be the case. Most employers perform specialized functions. Consequently they will only invest in developing the skills and theoretical knowledge that are relevant to those specialized functions. If the labour market were left to its own devices, the tendency would be to have persons who are competent in specialized skillsets, but not persons who are competent in a trade. Quite simply, the skilled trades cannot exist in the absence of an institutional framework that is external to the labour market. Historically that institutional framework was the guild system and then the regulations imposed by trade unions. When Ontario enacted its Apprenticeship Act in 1928 it was not creating an institutional framework to regulate apprenticeship ex nihilo. Rather, the province was statutizing a previously existing framework that had proven to be inadequate to meet the province’s economic needs. The decision to enact an Apprenticeship Act had nothing whatsoever to do with compulsory or voluntary status. Those distinctions did not arise until after WWII. The overriding purpose of the Apprenticeship Act was to support the development of competence in the skilled trades, because the unregulated labour market would not achieve that objective. From a labour economics perspective, supporting the development of competence in the skilled trades was, and continues to be, the raison d’être for regulating the skilled trades. It is the fundamental purpose of the College of Trades.

The Central Importance of Occupational Standards
Occupational standards are at the heart of any strategy or system to support competence in the workplace. The purpose of an occupational standard is to define the knowledge, skills and attitudes required for effective performance in the workplace and for broad employability in a particular line of work. Occupational standards, therefore, are the essential link between human capital investment on the one side and employability and productivity and productivity on the other. For training to be economically efficient for workers, employers and society, it must be geared to developing the competencies described in an occupational standard. An occupational standards is therefore a ‘public good’ that confers a broad social benefit which cannot be captured or monopolised by anyone.

Without occupational standards, training is hit-and-miss. Occupational titles lose their reliability as signals of competence. The ability of the labour market to match capabilities with jobs is diminished. Conversely, the efficiency of the labour market is enhanced when occupational standards reliably communicate both the core of an employer’s needs and the core of a worker’s capabilities.

Occupational standards are (or should be) the basis of everything else the College does. Occupational standards are (or should be) the foundation of training standards. Occupational standards are (or should be) the basis for the Scopes of Practice set out in Reg. 275/11, 276/11, 277/11 and 278/11. And finally, occupational standards, through their shaping of Scopes of Practice, provide (or should provide) the basis for classifying trades. For all of these reasons, the most important contribution of the College of Trades is the development and maintenance of occupational standards. Occupational standards are the first, and essential step, in supporting the development of competence in the skilled trades.

The Public Interest in Occupational Standards
Advocates for the economic interest of particular occupations sometimes confuse or fail to grasp the proper role of occupational standards. The purpose of occupational standards is not to create islands of protected work. Nor is it the purpose of occupational standards to exclude individuals from performing particular workplace tasks. Occupational standards are not about ‘jurisdiction’ or exclusivity. Occupational standards are about competence and only about competence.
Shared or overlapping competencies between occupations are the norm in the economy. While there are a core of competencies that are central to an occupation, there are other competencies which are often shared with other occupations. Job classification systems, union jurisdictions and ‘work rules’ may introduce boundaries, but these boundaries are products of human resources management or labour relations systems. Clear-cut boundaries are neither the intention nor the natural outcome of occupational standards. Nevertheless those with particular economic interests may try to draft some occupation standards, while opposing others so that they can ‘game’ the system to create a claim over a particular type of work.

The public has an interest in occupational standards that are economically valid and which are drafted to achieve competency goals and no other goals. Occupational standards are economically valid when they genuinely reflect prevailing needs and practices in industry and not the aspirations of proponents to claim or restrict the performance of particular kinds of work. This poses a challenge for the College of Trades. If the determination of occupational standards is left wholly or substantially in the hands of employers and workers attached to a particular trade, there is a significant risk that the resulting standards will subordinate the competency goal to supporting claims over particular kinds of work. The College’s system for developing and updating occupational standards must incorporate checks and balances as well as a credible public interest filter. Indeed, sec. 11 of the Ontario College of Trades Act can be read as requiring checks and balances as well as a credible public interest filter.

Occupational Standards and Public Safety
Competence requires that work be undertaken in a manner that is consistent with public safety and safety. It is not, however, the responsibility of the College of Trades to define the meaning of public safety. That function is carried out by specialized bodies or authorities with the appropriate expertise – an expertise that the College lacks. The College’s role is to ensure that the occupational competencies that are under its purview are consistent with the role of that occupation in relation to public safety as those responsibilities have been defined by the relevant authority. In the main, this means that occupational standards should indicate the expected level of knowledge of the relevant standards that pertain to public safety. These standards would include, depending on the trade, the Building Code, the Fire Code, standards established by the Electrical Safety Authority or the Technical Standards and Safety Authority, the Canadian Standards Association, etc. The relevant standards and the appropriate level of knowledge of those standards will vary by trade. However, the public interest requires a clear link between the competencies defined in occupational standards and the standards that are intended to protect public safety. The absence of this link is an important gap in the current system of occupational standards.

Occupational Standards and Workplace Safety
The Occupational Health and Safety Act puts the onus on employers to ensure that their employees are competent to perform tasks safely and that they are supervised by persons who are competent. In some contexts, the meaning of competence is specified in regulations to the Act. In other contexts, competence is not spelled out.
Employers have a right to expect that a certified tradesperson has been trained to carry out in a safe manner the tasks associated with the trade. In general, the training standards for the skilled trades are consistent with this expectation. However, the in-school portion of apprenticeship training does not explicitly incorporate training in the requirements of the Occupational Health and Safety Act and its relevant regulations. Nor do the examinations for trade certification call on candidates to demonstrate that they are familiar with those requirements. While there is a general emphasis on safe procedures in apprenticeship training, there is no explicit link to the legislated system for achieving safety in the workplace. This would appear to be a missed opportunity, especially when workplace safety is one of the specified criteria in Reg. 458/11 for determining decisions on ratios and trade classification. Both occupational standards and the training standards that derived from them should make an explicit link to the legislated system for achieving workplace safety. The absence of such a link is a serious gap in the current system of occupational standards.

Occupational Standards and Certification
It is self-evident that the certification of competence should be tied to the demonstration of competence. Most, if not all, of the skilled trades require high levels of manual dexterity and problem solving, in addition to knowledge of codes and standards and relevant theory. In this light, it is surely anomalous that the certification of competence in the skilled trades rests solely, or almost solely, on multiple choice examinations. It is difficult to see how this approach reflects the public interest in ensuring competence in occupations where problem solving and manual dexterity are essential aspects of competence.

A Sustainable Supply of Skilled Labour
It is universally accepted that Ontario needs a sustainable supply of skilled labour to support a productive and competitive economy. There are two gaps that constrain the capacity of the College to contribute to this goal. The first is structural. The second is analytical.

Structural Gap:
The College’s mandate and focus is the ‘skilled’ aspect of the supply of skilled labour. The College appears to have no mandate to manage supply, although it does have duties under Reg. 458/11 to consider the implications of ratios and reclassifications on the supply of tradespersons.

For better or worse (mostly worse), Ontario has a bifurcated system for managing the skill trades. The College of Trades establishes occupational standards and administers the system that certifies competence. The College determines when there is a need for a new trade to be established. The College also determines journeyperson-to-apprentice ratios where these apply and the classification of trades as compulsory or voluntary. The College does not, however, control any of the channels that determine the supply of skilled labour in the trades. The designation of Training Delivery Agencies (TDAs) to provide the in-school portion of apprenticeship training is an MTCU responsibility. MTCU also determines the number of ‘seat purchases’ which effectively controls the number of apprentices that can complete their training. This bifurcation of responsibilities creates a potentially serious problem. Actions taken by the College can reduce (or increase) the number of persons who can work in a trade or describe themselves as certified in a trade. However, the capacity of the training system and the number of persons admitted to that system are outside the College’s scope. From the perspective of ensuring a sustainable supply of skilled labour, the College is a one-legged stool. This structural issue needs to be addressed before the inevitable problems arise.

It should be self-evident that decisions which can reduce (or increase) the number of persons who can work in a trade or describe themselves as certified in a trade should not be made, except within a framework of a plan for dealing with potential supply side effects. The current silo system that assigns standards and certification responsibilities to the College, but supply side management to MTCU hinders, rather than serves, the public interest in ensuring a sustainable supply of skilled labour. Something needs to be done to bridge the two silos.

Analytical Gap:
Reg. 458/11 sets out criteria for determining ratios and for classifying trades. The criteria are redolent with the need to consider economic impact. For classification reviews, criterion (iv) specifically references economic impact. Criterion (vi) references supply and demand for journeypersons, which is surely an economic concept. Similar criteria are apply to the determination of journeyperson-to-apprentice ratios. These criteria are appropriate. Indeed, they are surely central to the public interest. Actions which create shortages damage the efficiency of the labour market, raise costs, undermine productivity and competitiveness, and destroy employment opportunities. The economic impact of classification and ratio decisions is surely at the heart of the public interest. Nevertheless, the College appears to have no reliable way to bring rigorous economic analysis to bear on either ratio or classification decisions. There is no internal research capacity. There is no practice of commissioning studies. Indeed, to the degree that economic analysis enters into evidence, it is filtered by the proponents that make submissions to panels. The absence of independent, rigorous economic analysis in making decisions on ratios and the classification is surely at odds with the College’s obligation under sec. 10 of the Ontario College of Trades Act. Something needs to be done to address this analytical gap.

Complexity of the Economy
Sec. 11(10) of the Ontario College of Trades Act specifies that one of the objects of the College is “to determine whether a trade should have compulsory certification status”. It is unclear whether this limits the College to an unqualified decision of classification or whether the College has the authority to determine whether only some matters with in a Scope of Practice should be compulsory or whether compulsory status should apply only in some sectors or industries. The current construction of Reg. 458/11 suggests that compulsory status applies to all matters within a Scope of Practice and that compulsory status applies to all industries and sectors unless there is an explicit exemption, as is the case with the ‘industrial exemption’ that applies in the compulsory construction trades.
A strict constructionist reading of Sec. 11(10) poses serious problems. If compulsory status applies to all matters within a Scope of Practice, then expanding the number of compulsory Scopes of Practice will inevitably introduce significant rigidities in the labour market. These rigidities will be compounded if compulsory status operates on an ‘all industries’ and ‘all sectors’ basis. The economy is too complex for such a rigid approach to occupational regulation. Indeed, this was implicitly recognized when work undertaken in industrial plants was given a blanket exemption in the regulation providing for compulsory status. If the industrial sector is too complex for compulsory trade status to work, why should all types of construction and maintenance work be treated as if a single rule could apply? It is difficult to see how a ‘one size fits all’ approach to occupational regulation is consistent with the public interest.

Enforcement and Compliance
The Canadian approach to regulating the workplace differs in important respects from the American approach. In Canada, legislatures have established obligations in statutes and articulated the meaning of these obligations in regulation. This is the case in occupational safety, minimum standards, pay equity and (in the federal jurisdiction) employment equity. For employers this approach to regulating the workplace provide clarity, In the United States, civil litigation plays a far more prominent role in creating and modifying employer obligations. Indeed, the United States, virtually all obligations pertaining to pay and employment equity have been the result of civil litigation. Arguably the American courts have felt obliged to fill the vacuum left by legislatures. The litigation-based approach creates uncertainty as to obligations, liabilities and remedies. It is a weakness in the American approach to workplace regulation, not a strength.

In the unionized construction industry, the enforcement procedures established under the Ontario College of Trades Act potentially create overlapping and conflicting standards. In the unionized construction industry, boundaries between trades (‘jurisdictions’) are established by the scope clauses of collective agreements, voluntary agreements between trades, voluntary arbitration procedures (e.g., the Chestnut Park Accord procedures) and adjudications by the Labour Relations Board. The procedures for adjudicating work claims are sophisticated and the criteria applied by OLRB adjudicators have stood the test of time. There is, however, is serious risk that a parallel and conflicting system for settling work claim disputes will arise under the aegis of the College of Trades with its system of penalties and private prosecutions. These parallel systems deal with the same basic question, namely ‘who does what’. Conflicting answers detract from labour relations stability and weaken the reputation of Ontario. It is not in the public interest to replace the clarity of the Canadian approach to workplace regulation with the uncertainty that is inherent in the litigation-based American approach. It is hard to see how the public interest can be served by instituting in the construction industry a parallel and potentially conflicting system for delineating work boundaries. Something needs to be done to restore clarity.

Aligning the College with the Public Interest
This report should not be interpreted as a criticism of the concept of a College of Trades. The first section of the report set out the economic case for regulating the skilled trades. It was argued that if the labour market were left to its own devices, the tendency would be to have persons who are competent in specialized skillsets, but not persons who are competent in a trade. There is a need for the College of Trades. The implications of this report, however, are that changes are need to address shortcomings and to avert problems that will arise:

1. The College of Trades should give top priority to updating the occupational standards for the trades under its purview. Current and industry validated occupational standards are the single most important contribution that the College can make to the public interest – and they are a significant and needed contribution. In particular, classification reviews should be deferred until occupational standards have been updated.

2. The College’s system for developing and updating occupational standards should incorporate checks and balances that guard against standards serving goals other than competency. As well, the College needs a credible public interest filter for reviewing standards before they are finalised. Sec. 11 of the Act can be read as requiring checks and balances as well as a credible public interest filter.

3. There needs to be a link between occupational standards and appropriate knowledge of the safety standards that are relevant to each trade. The College should not be defining public safety, but should be relying on the definition of public safety that emanates from the relevant code, standard or specialized authority.

4. There needs to be a link between occupational standards and knowledge of the requirement under OHSA that are relevant to each trade.

5. The system for testing competence needs replace exclusive reliance on multiple-choice examinations with a system than incorporate practical testing of the problem-solving and dexterity skills that are central to the occupational competence of tradespersons.

6. There needs to be a formalized and structured integration of the system for managing occupational standards and certification and the system for managing the training of apprentices. Decisions that potentially affect the supply of skilled tradespersons should only be made within a framework that concurrently addresses the supply-side implications of those decision.

7. The College needs a strategy to ensure that rigorous and impartial economic impact analysis is incorporated into its decision making, especially decisions pertaining to ratios and the classification of trades.

8. The College needs the capacity for flexibility in determining the circumstances in which compulsory status should apply. This flexibility should include the ability to make only some elements of a Scope of Practice compulsory and the ability to limits the application of compulsory status to particular industries or sectors.

9. The College needs to frame its enforcement activities so that they do not conflict with established procedures in the unionized construction industry for resolving work claims and determining boundaries between trades.

John O’Grady

Education
MA, University of Toronto
BA, University of Toronto

Career Summary
2000 – Present Partner, Prism Economics and Analysis,
1991 – Present Principal, John O’Grady Consulting Ltd
1992 Visiting Senior Researcher, Economic Council of Canada
1987-1990 Legislative and Research Director, Ontario Federation of Labour
1982-1987 Project Planner (Asia), Canadian Labour Congress
1978-1982 Assistant to President, Ontario Public Service Employees Union
1974-978 Research Officer, Ontario Public Service Employees Union
1973-1974 Associate Secretary (Administration), Council of Ontario Universities

Professional Experience

Consulting
Economic analysis with emphasis on labour market, industrial relations and human resource development issues. Studies examine drivers of change that operate on or through the labour market and steps that can be taken to address these pressures at the sectoral, occupational, or professional level. Clients have included:

- Canadian Apprenticeship Forum
- Canadian Council of Technicians and Technologists
- Canadian Labour Force Development Board,
- Cultural Human Resources Council,
- Canadian Labour Market and Productivity Centre
- Canadian Technology Human Resources Board,
- Canadian Steel Trade and Employment Congress,
- Canadian Council for Aviation and Aerospace,
- Contact Centre Canada,
- Construction Sector Council,
- Economic Council of Canada,
- Electricity Sector Council,
- Engineers Canada,
- Federal-Provincial Advisory Council on Immigration,
- Howe Research Institute,
- Employment and Skills Development Canada,
- Industrial Restructuring Commissioner (Ontario),
- Industry Canada,
- Information and Communications Technology Council,
- International Institute of Labour Studies (ILO - Geneva),
- Manitoba Workers Compensation Board,
- Ontario Construction Secretariat,
- Ontario Ministry of Treasury and Economics,
- Ontario Ministry of Training, Colleges and Universities,
- Ontario Ministry of Labour,
- Ontario Ministry of Finance
- Ontario Ministry of Citizenship and Immigration,
- Ontario Ministry of Tourism and Recreation,
- Ontario Premier’s Council,
- Royal Architectural Institute of Canada,
- Sectoral Skills Council of the Electrical and Electronics Industry,
- Workplace Health and Safety Agency,
- Workplace Safety and Insurance Board,
- Various unions and employee associations.

Teaching Assignments
- Ryerson University: Labour-Management Relations
- York University (adjunct professor): Special Topics in Labour Market and Industrial Relations Policy

Funded Study Tours
- Fulbright Programme in the United States to study trade and competitiveness
- Swedish Work Environment Fund and Swedish Information Agency – study of labour market policies and institution

Publications
“Removing the Obstacles to Negotiated Adjustment,” in Werner Sengenberger and Duncan Campbell, eds., Creating Economic Opportunities: The Role of Labour Standards in Industrial Restructuring, International Institute for Labour Studies (ILO) (Geneva, 1994)

Arbitration and Its Ills, School of Policy Studies, Queen’s University (1994)

“The Social Side of NAFTA,” in A.R. Riggs and Tom Velk, eds., Beyond NAFTA, Fraser Institute (1993)

““Beyond the Wagner Act,” in Daniel Drache, ed., Getting on Track: Social Democratic Strategies for Ontario (McGill-Queen’s Press, 1992)

“Labor Market Policy and Industrial Strategy after the Free Trade Agreement,” Labor Law Journal, (August, 1990)

“Labor Markets and Deficits,” in Roy Adams et al., Good Jobs, Bad Jobs, No Jobs, C.D. Howe Institute (September 1995)

Job Control Unionism vs. the New Human Resource Management Model, Queen’s University Industrial Relations Centre (1995)

“Integrating Sustainable Development into Workplace Governance,” in Sustainable Development: Getting There from Here, National Round Table on the Environment and the Economy and Canadian Labour Congress (1992)

The Role of Joint Committees in Workplace Health and Safety: A Review of the Legislation and Previous Studies, Study prepared for B.C. Royal Commission on Workers Compensation, published in T. Sullivan, ed., Injury and the New World of Work, UBC Press (Vancouver, 2000)

Direct and Indirect Evidence of Changes in Work Organization, Queen’s University Industrial Relations Centre

Work Organization, Labour Relations and Human Resource Management: The Negotiated Adjustment Option, Queen’s University Industrial Relations Centre

Presentations, etc.
Canadian Industrial Relations Association
Industrial Relations Research Association (US)
Economic Policy Institute (Washington, D.C.)
Canadian Bar Association (pension law section)
Canadian Association of Business Economists
Canadian Pension Conference/Canadian Association of Pension Supervisory Authorities/Canadian Institute of Actuaries
Canadian Association of Administrators of Labour Law
Economic Council of Canada
Institute for International Economics (Washington, D.C.)
Canadian Institute of Management
Centre for International Studies (University of Toronto)
Institute of Policy Studies (Queen’s University)
Canadian Labour Market and Productivity Centre
Fraser Institute
Lexium Inc. Pension Conference
Conference Board in Canada
Ontario Premier’s Council
Ontario Labour-Management Forum (Ministry of Labour)
Institute for Work and Health

Memberships, Etc.
Institute for Work and Health – formerly, member of Board of Directors and Chair,
Toronto Business Development Centre – formerly member of Board and President,
ORTECH Corp. - formerly member of Board of Directors and Vice-Chair
North-South Institute - formerly Treasurer and member of Board of Directors
Canadian Training Network (York University) - formerly member of advisory committee
HEALNet (Centre of Excellence funded through Medical Sciences Research Council) - formerly Chairperson of research advisory committee
Centre for Study of Living Standards - formerly member of Research Advisory Committee

APPENDIX "B"

Concordance of Objectives and Functions of the Ontario College of Trades and Apprenticeship Act with the Trades Qualification and Apprenticeship Act and Apprenticeship and Certification Act, 1998

Objectives of the Ontario College of Trades and Apprenticeship Act (s. 11(1)) Trades Qualification and Apprenticeship Act Apprenticeship and Certification Act, 1998

-To establish the scope of practice for trades
-To regulate the practice of trades
-To govern the members of the College
-To develop, establish and maintain qualifications for membership in the College
-To issue certificates of qualification and statements of membership to members of the College and renew, amend, suspend, cancel, revoke or reinstate those certificates and statements as appropriate
-To promote the practice of trades
-To establish apprenticeship programs and other training programs for trades including training standards, curriculum standards and examinations
-To maintain a public register of its members
-To determine appropriate journeyperson to apprentice ratios for trades subject to ratios
-To determine whether a trade should have compulsory certification status
-To receive and investigate complaints against members of the College and to deal with issues of discipline, misconduct, incompetency and incapacity
-To address compliance issues in respect of matters within the jurisdiction of the College
-To provide for the ongoing education of members of the College
-To work with other governments in Canada and the Minister with respect to the interprovincial standards program for apprenticeship and with respect to qualifications required for To work with other governments in Canada and the Minister with respect to the interprovincial standards program for apprenticeship and with respect to qualifications required for trades
-To conduct research in relation to trades
-To perform such additional functions as may be prescribed by a Lieutenant Governor’s regulation

Trades Qualification and Apprenticeship Act

-The Lieutenant Governor in Council may make regulations defining any trade (s.26(1)(a))
-Where an applicant for a certificate of qualification for a certified trade is the holder of a certificate of apprenticeship in the trade issued under this Act or a predecessor of this Act, the Director shall, upon payment of the prescribed fee and without examination, issue to the applicant a certificate of qualification for the trade (s.17)
-A certificate of qualification shall be renewed by the Director upon application and payment of the prescribed fee by the holder (s.18(2)
-The Director may refuse to renew or may suspend or revoke a certificate of qualification…(s.19)
-To publicize and promote apprenticeship as a method of training in any trade (s.6(c))
-To collaborate with persons and organizations in the determination of training requirements in any trade (s. 6(a)
-To plan and carry out programs of apprenticeship in any trade (s.6(d))
-The Minister may appoint a provincial advisory committee in any trade or group of trades to advise the Minister in matters relating to the establishment and operation of apprentice training programs and trades qualifications (s.3(1))
-The Director may appoint local apprenticeship committees composed of such persons as the Director considers appropriate for any area of Ontario to advise and assist him or her in matters relating to apprenticeship or trades qualifications in the area (s.4)
-The Lieutenant Governor in Council may make regulations respecting the ratio of apprentices to journeypersons who may be employed by an employer in a trade (s.26(1)(k))
-The Lieutenant Governor in Council may designate any trade as a certified trade for the purposes of this Act, and may provide for separate branches or classifications within the trade (s.10)
-Offences – s. 24
-To undertake or collaborate in studies or investigations of any trade and of the requirements for the supply and training of persons therefor (s.6(b))
-Generally to perform such other duties as are assigned to him or her by the Minister for the carrying out of this Act (s.6(e))

Apprenticeship and Certification Act, 1998

-The Director may suspend or revoke the registration of a registered training agreement (s.7)
-On application and on payment of the required fee, the Director may issue a certificate of qualification for a trade or other occupation (s.9)
-The Director may suspend, revoke or refuse to renew a certificate, and may suspend or revoke a letter of permission (s.11)
-To promote apprenticeship as a method of acquiring skills for trades and other occupations (s.5(1))
-To approve apprenticeship programs for trades, other occupations and skill sets, including curricula, training standards, examinations and the persons and institutions that will provide training (s.4(2))
-The Lieutenant Governor in Council may make regulations designating a skill set as a restricted skill set for the purposes of this Act (s.19(1))
-Offences – s. 17
-To work with other governments in Canada to promote the interprovincial standards program for apprenticeship and the qualifications required for trades, other occupations and skill sets (s.4(2))
-To exercise and perform such other powers and duties as are provided for in this Act or prescribed by the regulations (s.4(2))

Functions of the Ontario College of Trades and Apprenticeship Act (s. 11(1))

-To promote trades and apprenticeship (s. 64 - 1)
-To register training agreements (s. 64 - 2)
-To issue guidelines and policies for the purposes of this Part (s. 64 - 3)
-To work with other governments in Canada and the College with respect to the interprovincial standards program for apprenticeship and the qualifications required for trades (s. 64 - 4)
-To approve persons that will provide training for apprenticeship programs established by the College (s. 64 - 5)
-To administer examinations that may be prescribed by the Board for the purposes of obtaining a certificate of qualification or statement of membership (s. 64 - 6)
-To conduct policy development, evaluation and research in relation to trades and apprenticeship (s. 64 - 7)
-To carry out such other functions as are provided for in this Act or as are assigned by the Lieutenant Governor in Council (s. 64 - 8)

Trades Qualification and Apprenticeship Act

-See above
-Every contract of apprenticeship shall, upon its approval by the Director, be registered by the Director forthwith
-The Lieutenant Governor in Council may make regulations providing for approval by the Director of apprentice training programs established by employers (s.26(1)(e))
-The Lieutenant Governor in Council may make regulations providing licences for trade schools teaching any trade to which this Act applies and respecting their issue and prescribing courses of study and methods of training in such trade schools and respecting their operation (s.26(1)(f))
-The Director may approve an apprentice training program established by an employer (R.R.O. 1990, Reg 1055, s. 6(1))
-Where an apprentice has completed an apprentice training program, and has passed such final examinations as are prescribed by the Director, the Director shall issue a certificate of apprenticeship to the apprentice (R.R.O. 1990, Reg 1055, s. 14(1))
-Where an applicant for a certificate of qualification who is not the holder of a certificate of apprenticeship in a certified trade passes such examination as is prescribed by the Director in the certified trade the Director may, upon payment of the prescribed fee, issue to the applicant a certificate of qualification (R.R.O. 1990, Reg 1055, s. 17(1))
-The Lieutenant Governor in Council may make regulations providing for Interprovincial Standards Examinations and standing thereunder and for the recognition of certificates or standings granted under Interprovincial Standards Examinations in other provinces and the granting of certificates of qualification pursuant thereto (s.26(1)(l))

Apprenticeship and Certification Act, 1998

-See above
-On application and on payment of the required fee, the Director may register an agreement under which an individual is to receive workplace-based training in a trade, other occupation or skill set as part of an apprenticeship program approved by the Director (s.6(1))
-To issue guidelines for the purposes of this Act (s.4(2))
-See above

APPENDIX C - "Impact of Compulsory Certification in the Trades" by Rafael Gomez

IMPACT OF COMPULSORY CERTIFICATION IN THE TRADES:
A report to LIUNA Local 183 & OCOT Review

Rafael Gomez (B.A., M.A., MIR, PhD)
3/1/2015

The purpose of this report is to analyse the impact that compulsory certification in the trades has on a variety of outcomes. The theoretically expected impact is outlined, followed by empirical evidence if it exists. The discussion also puts the effect of compulsory certification into its broader context so as to highlight why the effects are important from a practical and policy perspective (e.g. the outcome of labour mobility is put in the context of the growing importance of labour mobility). The ultimate intent is to provide input into sound evidence-based policy making, as opposed to the rhetoric and advocacy arguments that are often put forth.

IMPACT OF COMPULSORY CERTIFICATION IN THE TRADES
The purpose of this report is to analyse the impact that compulsory certification in the trades has on a variety of outcomes. The theoretically expected impact is outlined, followed by empirical evidence if it exists. The discussion also puts the effect of compulsory certification into its broader context so as to highlight why the effects are important from a practical and policy perspective (e.g. the outcome of labour mobility is put in the context of the growing importance of labour mobility). The ultimate intent is to provide input into sound evidence-based policy making, as opposed to the rhetoric and advocacy arguments that are often put forth.

The inter-related outcomes that are examined are:

- entry into trades, labour supply and shortages
- labour mobility
- pay and labour cost
- prices and cost of services
- quality of service
- health and safety and public health
- entry into trades: immigrants, Aboriginal persons, women and youth
- flexibility, innovation and adaptability to technological change
- ratcheting-up the regulatory ladder

The terms compulsory or mandatory certification as used here refer to the granting of the exclusive- right-to-practice the trade in that only those with the certification can do the work of the trade. Compulsory certification is in contrast to voluntary certification which grants only the exclusive-right-to title in that only those with the voluntary certification can use that title but others can practice the trade.

The same exclusive-right-to-practice vs. the exclusive-right to title distinction prevails in the professions as in the trades. Sometimes the term occupational licencing is used to denote those professions that have the exclusive-right-to-practice in that only those with the licence can practice (e.g., doctors, lawyers) and the term occupational certification is used to denote those professions that have the less restrictive exclusive-right-to-title in that only they can use their certification but others can practice in the profession (e.g., general accountants, but not Certified Public Accountants).

The issues between the trades and the professions are also the same. The certification or licensing powers are given to self-governing professional or trades groups on the grounds that they have the information and expertise to determine the requisite requirements. They also have the same potential effect on the outcomes indicated above. This is important, since most of the evidence in this area (cited below) exists for the professions and not the trades. There is no reason to believe, however, that the evidence for the professions would not be relevant for the trades.

The discussion below will be liberally sprinkled with quotes from the original sources so as to give a full-flavour of their findings and conclusions. Prior to dealing with the evidence on the impact of compulsory certification and licensing, a brief discussion of the ostensive rationale for compulsory certification is provided, followed by a discussion of capture theory outlining why the regulatory process may be subverted by those who are regulated to further their own ends.

The emphasis in this report is on outlining the negative aspects of compulsory certification because the potential positive aspects, especially in terms of protecting the public from low-quality services, tend to be overwhelmingly emphasised in the popular literature. In that vein, much of the negative discussion in this report is based on the “law of unintended consequences” as emphasised in economics whereby well-intended policy initiatives often have severe unintended negative consequences that often harm the very groups they are designed to help.

Ostensive Rationale for Compulsory Certification
The ostensive rationale for compulsory certification is to protect the public from low-quality services in areas where it is difficult for users of the service to judge its quality and where the consequences of poor service can be severe. As indicted in an early study by Beatty and Gunderson (1978, p. ii, iii) “It is for the protection of the public that schemes of occupational self-government must have their ultimate rationale. Such power may be justified … when a complex service is provided on an occasional basis to an uninformed clientele. In these circumstances the clientele cannot be expected to be able to judge effectively the quality of the service, and occupational licensing may be accepted as one way of assuring some basic degree of public protection” [emphasis added].

The previous statements suggest that a four-part test should be used to determine if it is appropriate to grant compulsory certification powers to a self-governing body, with the power granted only if all conditions are met.

• It should be difficult for users to judge the quality of the service, perhaps because it is complex.
• The service should be infrequently used because if it is frequently used, then users should be able to accumulate the information about its quality through experience, and they have an incentive to acquire the information because they are using it frequently.
• 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.
• There are not viable alternatives to compulsory certification to achieve those same ends.

Based on these criteria, it is difficult to see, for example, how some professions involve compulsory certification or licensing. Consumers should be able to judge the quality difference of most services – such as a good or bad haircut – albeit after the fact. If the need for the service is fairly frequent, the user should have the cumulated experience to judge the quality. Moreover, with the advent of the internet and social media, a bad service experience can now be known to more than just the affected party. In most cases the negative consequences of poor service provision are not severe: as the expression goes, “the difference between a good and a bad haircut is two days.” (Kleiner 2006, p. 98). And if there are negative consequences, there are alternative mechanisms for the consumer such as going to a shop which has a good reputation. Since most of these criteria are rarely metin compulsory licensing of barbering of many services, something else must be in play.

Capture Theory

As indicated, the powers to regulate the profession or trade are generally given to self-governing bodies in the profession or trade since only those in the profession or trade know the complexities of the service. The potential danger, however, is that those in the profession or trade control not only the supply of their service through the regulations they establish, but also the demand for their service (since they generally tell the users how much they need, since the service is too complex for the users themselves to determine). As stated by Trebilcock (1978, p. 10): “In important respects, suppliers determine the demand for their own services.” In such circumstances, they have an incentive to increase the demand for their service and restrict supply since either of those forces would enhance their remuneration, while both forces working together would enhance their pay even further.

This concern is emphasized in capture theory in economics. Capture theory basically argues that those who are regulated capture the regulatory process for their own ends, even when the process is established to protect the public. This is facilitated by the fact that those who are regulated often have an intense and concentrated vested interest in the outcome and they often have the resources, information and expertise to lobby and influence those who grant the self-governing powers. In contrast, the users and members of the public are often dispersed, unorganized and without a concentrated interest, especially if they use the service infrequently.

As aptly stated by Timmons and Thornton (2010, p. 757) in the case of barbering:

“Barber groups (just as any other lobbying group) have a strong pecuniary interest in licensing legislation and can devote a great deal of time and resources to their lobbying efforts. Consumers, on the other hand, spend a very small percentage of their income on barbering services and find it not worthwhile to spend time lobbying against, or even learning about, licensing legislation. As a result, groups such as barbers have a much better chance of initiating and maintaining licensing laws than consumers have of eliminating them.”

In a more general context, Trebilcock (1978, p.9) states:

“Given the concentrated resources, expertise, and stakes of the professions when matters of their own regulation are at issue – relative to other less-organized more thinly-spread interests – it may be at least questionable whether any public agency charged with oversight of the professions is likely to be able to avoid for very long a pro-professional bias of substantially less marked proportions than that sometimes attributed to agencies of professional self-government. In both contexts the organized professions are likely to prove the dominant interest group in regulatory decision making.”

This potential concern that the self-governing bodies can use their power to further their own ends rather than the public interest has been expressed in numerous studies:

As early as 1776, Adam Smith in The Wealth of Nations (1904, p.144) stated:

“People of the trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices… Though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such, much less render them necessary.”

He further states:

“The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbour, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman, and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper. To judge whether he is fit to be employed, may surely be trusted to the discretion of the employers whose interest it so much concerns. The affected anxiety of the law-giver lest they should employ an improper person, is evidently as impertinent as it is oppressive.” Adam Smith, The Wealth of Nations (1904, Book I, chapter 10, p.67).

In the more current Canadian context, The Immigration Legislative Review Advisory Group (1998, p. 36) stated:

“Each province at some stage […]created bodies that were empowered to regulate access to trades and professions in the province through licensing and registration requirements. These associations have operated in an extremely independent manner, often free of political scrutiny and accountability. Many have used their role as protectors of the health and safety of consumers as a guise to protect the interests of their members through exclusionary entrance requirements. This has made interprovincial mobility for all Canadians extremely difficult, and has created even greater barriers for immigrants, who are viewed as a threat to the earning power of the members of some professional associations, and as unknown quantities with unknown qualifications by other bodies.”

(Sylvia Ostry, 1978, p. 21) states:.

“One might well be suspicious of licensure at the outset because the pressure for licensing invariable comes not from the consumers to its product but from the trades and professions themselves. Licensing is a considerably less than ideal form of consumer protection.”

This does not necessarily mean that the self-governing bodies will consciously abuse their power by putting their own interest before the public interest. It is understandable that members of a trade or profession genuinely believe in the importance of their trade or profession and take considerable pride in the performance of their work. They likely genuinely believe in the importance of the service they provide and hence have no hesitation in fostering the demand for their service. They also likely genuinely believe that the supply of their services should be provided only by qualified personnel. The sincerity of their beliefs, however, could be tested if increasing the demand for their services or restricting its supply had a detrimental effect on their pay, but its positive effect on their pay is certainly conducive to their not questioning their beliefs. Furthermore, their interest is likely focused on providing high-quality service without considering the more indirect and subtle potential negative effects of compulsory certification on such outcomes as prices, flexibility, costs, innovation and availability of the service. For these reasons there are legitimate concerns to make sure the “foxes are not guarding the henhouse.”

The material that follows outlines the negative effects on various outcomes of compulsory certification of trades. Most of the literature related to this area deals with the exclusive right-to-practice or occupational licensing of professionals. As indicated, however, the same issues apply to the compulsory certification of trades through a self-governing process. For each outcome, the format that will be followed is first to highlight why the outcome is important, second to indicate the expected effect of compulsory certification based on basic principles of economics, and third to provide empirical evidence on the effect if such evidence is available.

Effect on Entry, Labour Supply and Shortages

Proponents of compulsory certification often argue that it will increase labour supply to the occupation and hence reduce labour and skill shortages. Presumably the increase in labour supply is to come from the fact that the occupations will become more attractive to potential new entrants given their higher status and perhaps higher pay.
Presumably the skill shortages will be alleviated from this greater labour supply and any increase in the skills that will come from the licensing.

This line of reasoning, however, confuses the fact that licensing will increase the desired labour supply to the trade or profession, but will reduce the actual overall labour supply to the trade or profession by reducing entry. In the language of basic economics, the line of reasoning confuses a movement up a given supply curve of labour as more persons desire to enter the occupation because of its higher pay, with a decrease in the actual overall supply of labour to the occupation as entry restrictions are imposed. It is this reduction in the overall supply of labour due to the entry restrictions in a regulated occupation that leads to higher pay in the occupation. The higher pay in turn means that more people will desire to enter the regulated occupation (i.e., a movement up the supply curve of labour) but the higher pay and hence higher price of the service, reduces the demand for the service (i.e., a movement up the demand curve for labour). This artificial reduction in the quantity demanded of the service in response to the higher wage and hence price of the service, means a shortage of skills relative to the situation where the pay had not been artificially increased by the restrictions of entry into the trade. The reduction in the quantity of the service demanded because of the artificially high wage also means that consumers of the service are suffering a welfare loss because the artificial scarcity means that they are receiving less of the service than they are willing to pay for.

In essence compulsory certification will reduce entry into the trade, this reduction in labour supply will artificially increase wages (termed economic rents by economists) and reduce employment in the trades which will in turn foster shortages. There will be a surplus or queue of labour desiring to enter the trade because of the higher pay, but there will be fewer jobs because of the higher wages and hence higher prices of the service. Furthermore, many who cannot get the coveted jobs in compulsory trades will shift to the non-compulsory trades with that supply influx lowering the wages in those trades. As well, the artificial scarcity leads to a welfare loss to consumers.

These are illustrated in Figure 4.1 in Kleiner (2006, p. 68) and when he states (p. 67):

“The implications of the model presented in Figure 4.1 suggest that licensing not only has the effect of raising wages and reducing employment in the regulated occupation but also reducing wages and increasing employment in the unregulated occupation.”

“A basic labour market model shows that a reduction in the supply of licensed practitioners increases earnings of regulated workers but may lower the earnings of individuals in unregulated occupations.” (p. 94)

“Although there may be gains to the individuals in the regulated occupations through higher wages there also may be losses to society through lost output. When an occupation becomes regulated wages and prices usually go up (Rottenberg 1980). If there is a standard downward sloping demand curve [i.e., consumer purchase less if the price increases], then increases in the price of the service may result in both a reallocation of income from consumers to the purveyor of the services and a loss of the services to society through lower employment and fewer services. (p. 113, 114)…Kleiner (2006, p. 115) then provides calculations for the US indicating that “the estimated reallocation of earnings from consumers to licensed practitioners is between $116 billion and $139 billion in 2000 dollars”….and the “loss to society of licensing is between $34.8 and $41.7 billion.”

In his latest analysis, Kleiner (2015, p.6) concludes:

“Studies have also shown that licensing reduces employment growth and limits job opportunities, especially for low-income individuals; the additional requirements needed to earn licensure may steer these workers into lower-paying but more accessible jobs (Carpeneter et al. 2012; Kleiner 2006). In fact, standard economic models imply that restrictions from occupational licensing can result in up to 2.85 million fewer jobs nationwide, with an annual cost to consumers of $203 billion.”

In essence, basic principles of economics highlight that compulsory certification in the trades will restrict entry into the trades, reducing overall labour supply and employment in those trades, exacerbating skill shortages and creating artificially high wages and hence higher prices. This basic line of reasoning is outlined in virtually every rigorous study of the impact of occupational licensing and compulsory certification, and in the evidence from those studies cited below. The basic line of reasoning is illustrated in the following extensive quotes from such studies. Emphasis is added in italics in the quotes to highlight the restrictions on entry, reduced labour supply, reduced employment, increased wages and prices, and enhanced shortages.

In his comprehensive book that provides the most extensive treatment of occupational licensing to date, Kleiner (2006) states these basic principles related to entry restrictions, reduced labour supply, reduced employment, higher wages to incumbents, higher prices to consumers, and skill shortages:

“The consequence of these regulatory practices is a reduction in the flow of new entrants into the occupation,” (p. 8)

“Economists generally accept that licensing is a way of limiting competition since they argue that liceneses limit labour supply, often through varying the pass rates and statutory regulations on residency requirements.” (p. 12).

“The merchant guilds that developed during the Middle Ages and ‘Enlightenment’ in Eupope later served as models for current professional associations. The guilds limited entry into the occupations and enforced requirements that merchants only hire from the guild.” (p. 19).

“The goals of regulatory boards are to control entry into the occupation and to enforce the standards of practice among licensed practitioners.” (p. 29).

“Licensed occupations are able to limit supply in response to market conditions through changing licensing statutes or through extending the required training program for entry or reducing the number who pass an entry exam.” (p.44).
In his more recent book examining case studies of various degrees of licensing for different occupations, Kleiner (2013) illustratres how the various degrees of regulation restrict entry and hence reduce the supply of labour to an occupation. In general, he finds:

“in the states were the occupations were unlicensed the growth rate in employment was 20 percent faster than in states that did license these occupations.” (p. 6) [that is, labour supply to the occupation was reduced by the licensing].

For interior designers Kleiner (2013, p. 23) states:

“licensing is a danger to job growth in Minnesota because it limits the number of interior designers who could practice in the state. Furthermore, the argument goes, licensing would be detrimental to consumers because the limited supply of interior designers would both increase the prices charged for services and limit access to services [i.e., create shortages].”

For mortgage brokers, he finds (p. 62):

“The results show that the bonding and net worth requirement is significant and negatively associated with employment.”

For childcare providers, he indicates (p. 93):

Hofferth and Chaplin (1998) as well as a number of reports. In discussing the study by Hotz and Xiao (2011), he states that “The child-to-staff ratio requirements deterred provider entry and reduced supply.”
For electricians and plumbers in the construction industry, he states (p. 139) that “the ability of a state to limit entry or impost major costs on entry through licensing would enhance the occupation’s ability to raise wages.”
Overall, from these various studies he concludes (p. 210):

“The overarching results show that as an occupation increases its coverage and the time it has been regulated, it enhances its ability to raise wages and reduce employment growth. This is because occupational licensing boards, which are usually controlled by members of the occupation, can limit supply and capture jobs for the licensed occupation. Also, as with previous studies of the influence of occupational regulation, there appears to be little or no influence on outcomes as measured by consumer welfare or the safety of workers on the job.”

Benham and Benham (1978, p. 41) state:

“Economists are continually pointing out that barriers to entry into a given occupation mean higher earnings for the individuals within that occupation.”

Kaiser (1978, p. 60) states:

“The competitive health of professional service markets may be much more substantially determined by policies of provincial governments affecting the supply of entrants to professional markets: entry bottlenecks to such markets involving excessively high entry qualifications, manpower policy as reflected in the structure and capacity of educational institutions, excessively rigid entry tracks precluding optimal utilization of paraprofessional services, and so on.”

In his earlier review, Kleiner (2000, p. 192) states:

“The most generally held view on the economics of occupational licensing is that it restricts the supply of labour to an occupation and thereby drives up the price of labour as well as services rendered.” … “Most of the empirical work on the regulation of occupations has emphasized barriers to entry… The consequences of these regulatory practices is a reduction in the flow of new persons into the occupation.” (p., 197).
Timmons and Thornton (2010, p. 748) state:

“The empirical analysis of regulation has consistently found a significant relationship between regulations, price and demand for daycare…These findings show that the regulation of an input, especially a costly one such as labor in producing childcare, will restrict the supply of those services.” He cites studies by Lowenberg and Tinnin (1992), “The theory underlying the effects of barbering licensing is straightforward. Barber licensing with its various requirements as just discussed, imposes higher entry costs for those aspiring to enter the trade. These higher entry costs in turn cause the supply of practising barbers to be lower than would otherwise be the case. The result is higher prices for barbering services and higher barber earnings.”

In light of this overwhelming concensus of rigorous studies of occupational regulation it is difficult to see how statements can be made that such regulation will increase labour supply to the occupation and hence reduce labour and skill shortages. Basic reasoning indicates the opposite. Occupational regulations will restrict entry into the trade, reduce employment and labour supply, increase pay for incumbents, increase prices for consumers of the service and foster skill shortages. Evidence on these effects, as well as others like restricting labour mobility, is provided below.

Effect on Labour Mobility

Fostering the inter-provincial mobility of labour, and removing barriers that can inhibit such mobility is crucial for a wide range of reasons. Such mobility reallocates labour away from declining sectors and regions towards expanding ones. It tends to be win-win in that it benefits both the sending and receiving regions. For the sending regions it reduces their unemployment and underemployment and the social problems associated with such unemployment. For the expanding receiving regions it reduces labour and skill shortages and hence alleviates bottlenecks in production with their related consequences such as lost output and reduced
employment of complementary workers. Inter-provincial mobility provides a more rapid response to skill shortages compared to other mechanisms such as immigration or the education or training system with their long lags. It involves the reallocation of domestic workers and hence reduces reliance on controversial solutions to skill shortages through programs like the temporary foreign worker program that has drawn criticism for displacing domestic workers. Interprovincial mobility reallocates skills that are already in existence as opposed to the costly and uncertain process of producing those skills through the education and training system. It is consistent with the current emphasis on active labour market adjustment which fosters adjustment in the direction of basic market forces. This in turn reduces reliance on passive income maintenance programs like employment insurance which can deter such adjustments, making the impact of any adjustment more costly when it ultimately occurs. Interprovincial mobility involves continuous adjustment on the part of persons who are willing and able to move, thereby reducing the risk of the ultimate more disruptive infra-marginal adjustments in such forms as costly mass layoffs and plant closings. Overall, inter-provincial mobility is regarded as crucial for fostering the internal competitiveness of the Canadian economy that is imperative to be able to compete in the global marketplace.

This importance of inter-provincial mobility is recognized in a wide range of recent policy initiatives in Canada.

These include: the Labour Mobility Chapter (7) of the
Agreement on Internal Trade (AIT) of 1995; the Trade, Investment and Labour Mobility Agreement (TILMA) of 2007 between British Columbia and Alberta; the Trade and Cooperation Agreement between Ontario and Quebec of 2009 to facilitate mobility in their construction sectors; a similar agreement between Quebec and New Brunwick in 2008; the New West Partnership Trade Agreement (NWPTA) of 2010 between British Columbia, Alberta and Saskatchewan; and the Red Seal program that provides mutual recognition of apprenticeship credentials.

Compulsory certification can deter the inter-provincial mobility of labour for a number of reasons. It raises the cost of mobility since it creates uncertainty as to whether the individual can practice in the new jurisdiction because only those with the compulsory certification can practice the trade. Reciprocity in the mutual recognition of credentials through such mechanisms as the Red Seal program can foster such mobility, but only about 50 of the over 200 trades have the possibility of a Red Seal designation, and only about 60% of apprentices who completed their apprenticeship in a Red Seal trade have acquired the Red Seal (Empey 2010, p. 6) in part because of its additional requirements (Sharpe and Gibson, 2005).

For those without a mutual recognition arrangement, the potential mover has to engage in the costly and uncertain process of having credentials recognized or of acquiring the new credentials such as training and experience and testing, all in an unfamiliar environment. The new environment and its compulsory trade requirements also means that the potential mover has to establish new contacts and networks for using their skills in the compulsory trade. To the extent that their compulsory certification yields pay premiums associated with their artificial scarcity, they may also be reluctant to move to jurisdictions with less stringent regulations.

In spite of its importance, measuring the impact of occupational regulations on geographic mobility has received little attention in the literature that evaluates the impact of such regulation. As stated by Koumenta, Humphris, Kleiner and Pagliero (2014, p. 22): “The relationship between occupational regulation and migration [is] an even less familiar ground for researchers in this field…Perhaps the most under-developed theme in relation to occupational regulation is its impact on geographical mobility.” There is no discussion of the effect of occupational regulation on mobility in the two books which represent the most comprehensive and current evaluation of the effects of such regulation (Kleiner 2006, 2013). This is also the case with the comprehensive review of occupational regulation in Kleiner 2000) although he does assert that “mobility declines for individuals who have an occupational licences” (p. 198). Day and Winer (2012) do not include the effect of occupational regulation in their comprehensive analysis of the impact of public policies on internal migration in Canada. Much of this absence of evidence reflects the difficulty of compiling data on occupational regulation and linking it to the geographic mobility decision.

While there is a dearth of analysis of the impact of occupational regulation on mobility, there are a few studies. They are presented here in chronological order. Based on 1949 US data, Holen (1965) documents that interstate mobility was greater for doctors compared to dentists or lawyers and argues that this occurs because the licensing requirements for practicing in another jurisdiction are the least restrictive for medicine. She also finds that the average income of lawyers and dentists are higher in those states that have high failure rates amongst applicants for positions, with high failure rates being taken as an exclusionary practice. This does not occur for doctors because their mobility (due to the fewer restrictions to practice in other jurisdictions) levels-out the income differences as mobility is from the low-income states (with the supply decrease raising the income) to the high income ones (with the supply increase raising their income). Overall, her evidence is consistent with the notion that restrictive licensing requirements reduce inter-state mobility.

Pashigian (1979) uses data from the 1970 US Census to document that interstate migration is lower in regulated occupations that require compulsory licensing compared to those that do not require licensing. It is lowered further if they require licensing and do not have reciprocal mutual recognition of credentials. He concludes (p. 7): “These crude comparisons suggest that licensing and restrictions on reciprocity do reduce the flow of human capital.”
He also provides a more detailed econometric analysis of lawyers and dentists where he controls for the effect of other factors that can affect migration. He finds that “licensing itself reduces the interstate migration rate and the probability of an inter-state move and the restrictions on reciprocity reduce [mobility] even further.” (p. 15). He further provides calculations to indicate the magnitudes of the effects (p.16). Specifically, he calculates that licensing reduces mobility by about 150 percent for lawyers and dentists, and the absence of reciprocal mutual-recognition arrangements reduces mobility by almost an additional 50 percent for lawyers and almost 40 percent for dentists. Overall he concludes (p. 24): “Occupational licensing has had a quantitatively large effect on reducing the interstate mobility of professionals. Placing further restrictions on the interstate movement of human capital by limiting the use of reciprocity reduces interstate mobility still further, but by a diminishing amount.”
Kleiner, Gay and Greene (1982) also use econometric techniques to estimate the effect of licensing restrictions on inter-state mobility and the income of those in regulated occupations, after controlling for the effect of other factors that influence those outcomes. Their analysis is based on data for 14 occupations that are universally licensed in all 50 US states from 1965 to 1970. They focus on the effect of the lack of reciprocal mutual-recognition arrangements. They find that the lack of such arrangements artificially restrict inter-state mobility by 60 percent and artificially raises the income of incumbents in the licenced occupations by 7 percent. This is over-and-above the effect of other restrictive practices that deter entry into their regulated occupation. They conclude that moving to a system of reciprocity where states mutually recognize the licenses of other jurisdictions would “increase gross in-migration of these licensed practitioners by over 60 percent… and reduce the earnings of persons in the occupations in the sample by over 7 percent.” (p. 388).

Federman, Harrington and Krynski (2006) estimate the effects of state licensing regulations on the immigration and internal migration of a lower-skilled occupation – manicurists from Vietnam. They find that their level of immigration into the US and their internal mobility within the US are impeded by the existence and restrictiveness of state licensing regulations. They state (p.238): “Our estimates also imply that 100 hours of additional required training reduces the number of Vietnamese manicurists by 0.019 per 1,000 residents, a 17.6 percent reduction relative to the sample mean.” They also find that more stringent state regulations with respect to training requirements and English language proficiency reduced their inter-state mobility once in the US. They conclude (p. 241) that “these regulations result in fewer manicurists overall, which is likely to raise the price of manicures and reduce consumer options, especially since the Vietnamese have pioneered the ubiquitous, stand-alone nail salon.”

Overall, the limited evidence of the effect of occupational licensing on internal mobility within a country indicates that licensing does restrict internal mobility and the greater the stringency of the regulations the greater the negative effect. The fact that Canada has instituted so many internal trade and mobility arrangements that emphasise the importance of mutual recognition of occupation credentials, as is the case with the Red Seals program, further suggests that allowing the more flexible use of skilled workers is crucial to foster the internal mobility of labour that in turn is crucial for competitiveness.
Immigration into Canada and Foreign Credential Recognition

Overly restrictive occupational licensing practices can also deter immigration into Canada, especially in situations where foreign credentials and foreign experience are not fully recognized. This is especially important for Canada given that we are a nation of immigrants and immigration is important in filling skill shortages.

However, there is rising concern from the fact that successive cohorts of immigrants into Canada are having a more difficult time integrating into the labour market in the sense of achieving the same earnings as Canadian-born persons who have the same skills (Beach, Green and Worswick 2011 provide an extensive review of the Canadian literature on this topic). This slower integration has fostered the growing poverty amongst recent immigrants into Canada as evidenced by the fact that the proportion of recent immigrants who have been in Canada for 5 years or less who fell below the poverty line has increased from 24.6 % in 1980, to 34.2 % in 1985, to 31.3 % in 1990, to 47 % in 1995, before falling to 36 % in 2000 and 2005 (Picot et al. 2010, p. 14). This has occurred when the overall poverty rate in Canada has declined over that period. Furthermore, recent immigrants have been identified as one of the five vulnerable groups in Canada with 25.6% of recent immigrants experiencing persistent poverty over the period 1996-2001, compared to an average of 3.4% for the non-vulnerable groups (Hatfield 2004, p. 19). The most important factor associated with escaping poverty was having attachment to paid employment, with the poverty rate for each vulnerable group being approximately three to six times higher for those who had no paid employment (Hatfield 2004, p. 22). This highlights the potential concern if immigrant employment in the trades and professions is restricted by occupational regulations.

Facilitating access to the trades and professions for immigrants is particularly important since it is more cost-effective to utilize existing skills that are already embodied in immigrants as opposed to engaging in the costly process of producing new skills (Price Waterhouse 1998). As well, if barriers exist that make it difficult for immigrants to utilize their trade, as can be the case with mandatory certification in the trades, immigrants may become disillusioned, especially if they feel they have been enticed into the country by a skills-based point system (Bauder 2003; Grant and Nadin 2007). This negative image in turn can have a negative effect on the decision of potential new immigrants to come to Canada. This in turn can impede our ability to compete for such skilled talent in a world where such competition is of growing importance (Gera and Songsakul, 2005). If there is a perception that the protected compulsory trades are reserved largely for domestic-born persons this can obviously have a negative effect on immigration. Girard and Smith (2013) provide Canadian evidence that immigrants are less likely to work in a regulated occupation compared to similarly qualified Canadian-born persons.

Furthermore, ambiguity around recognizing foreign credentials allows prejudice to enter into their evaluation, as evidenced in Esses, Dietz and Bhardwaj (2006) and Esses, Dietz, Bennett-Abuayyash and Joshi (2006).

With the exception of the Federman, Harrington and Krynski (2006) study cited above in the context of mobility, there is little direct evidence of the effect of licensing regulations on immigration (as opposed to the differential effect on immigrants themselves, as discussed subsequently). As indicated, Federman, Harrington and Krynski find that the level of immigration into the US and their internal mobility within the US of manicurists from Vietnam are impeded by the existence and restrictiveness of state licensing regulations.

The evidence on the effect of occupational regulation on immigration tends to be more indirect, indicating that the lack of the recognition of foreign credentials can adversely affect immigrants and hence deter immigration. Such evidence is documented in a number of studies in Canada. Schellenberg and Maheux (2007) provide survey evidence indicating that immigrants cite difficulties in finding a job as one of the things they disliked most about Canada, and of those who encountered difficulties, over one-third cited lack of recognition of their foreign credentials as a reason. Allison (2008, p.27) cites the non-recognition of foreign credentials as “the biggest failing of our credential recognition system.” Bloom and Grant (2001, p.29) conclude: “Non-recognition of immigrants’ foreign credentials is the biggest single learning recognition problem in Canada today.”

Calculations of the loss of potential output to the Canadian economy from that lack of proper recognition of the foreign credentials of immigrants range from $2.6 billion (Reitz, 2001) to about $5.9 billion (Bloom and Grant, 2001).

Occupational regulations, like the requirement for compulsory certification required to practice in the trade, will invariably confront the issue of the recognition of foreign credentials. To the extent that foreign credential recognition is a problem – and the evidence suggests this is the case – then it will have an adverse effect on immigrants and hence deter immigration that can fill labour and skill shortages, with its attendant effects on the overall economy. In contrast, voluntary certification in the trades will enable immigrants to practice in the trade even if their foreign credentials are not recognized.

Occupational regulation is expected to raise the pay of incumbents in the occupation by making it more difficult and costly to enter the occupation. This restriction on entry and hence reduced supply creates an artificial scarcity that provides monopoly rents (wages above the competitive norm that would otherwise clear the market). As indicated previously, this artificial pay premium is one of the reasons that incumbents are not likely to question whether their restrictions are in the public interest. It also provides incumbents an incentive to “pull up the ladder behind them” and make it more difficult for new entrants to enter the occupation, for example, by increasing the education or training requirements, or lowering the pass rate if exams are required.

Evidence that the pass rate is altered in ways to restrict entry and protect incumbents (e.g., lowered in times when the occupation is experiencing a decline in demand for its services, and hence when it is desirable to protect existing jobs by reducing entry into the occupation), is provided in Maurizi (1974), and Kleiner (2006). Such a procedure of altering the pass rate seems more consistent with protecting the jobs of incumbents than it is consistent with protecting the public since there is no reason to believe that the public needs more protection when work is scarce for the occupation.

Since incumbents invariably exempt themselves from any new additional requirements they impose on potential new entrants, they garner the rents without having to bear the cost of the new requirements. In that vein, they are certainly less prone to question the viability of any new requirements they impose. Prohibiting the exempting of incumbents from new additional requirements (i.e.,, prohibiting grand-parenting) would invariably make them question the need for the new requirements if the incumbents also had to meet the new requirements.

In an earlier review of studies that estimate the impact of occupational licensing on the pay of those occupations, Kleiner (2006, p. 112) concludes “for most licensed occupations, there is a wage premium that ranges from 4 percent for partially licensed occupations to 12 percent for occupations that are licensed relative to their non-licensed counterparts.” More recent studies that use more rigorous econometric procedures to control for the effect of other determinants of pay tend to find higher premiums ranging from 12% to 18%. Specifically, they are 15% in Kleiner and Krueger (2010), 18% in Kleiner and Krueger (2013), and 12.3% in Gittleman and Kleiner (2013). Gittleman and Kleiner (2013), however, also do a variety of alternative specifications in their empirical analysis, and they find estimates of the pay premium that vary considerably, such as 7.8% and sometimes even close to zero. This highlights that while 15% may be a reasonable best approximation of the pay gain from licensing, there can be legitimate controversy around the estimate.

Similar positive effects on pay of incumbents in an occupation are also found in studies that focus on a particular occupation. Timmons and Thornton (2010) estimate that the licensing of barbers in the US increased their pay by 11-22 percent. Thorton and Timmons (2013) estimate that the licensing of massage therapists in the US increased their pay by about 16 percent. Timmons and Thornton (2008) find that the licensing of radiologic technologists raised their wages by 3.3% but this more than doubled to 6.9% when they used procedures to account for the possibility that licensing may occur in situations where raising wages is more feasible.

Kleiner and Kudrle (2000) use econometric analysis to examine the effect of occupational regulation in dentistry in the US. They find (p. 573) that “a state that changed from a low or medium to highest restrictiveness could expect to see an increase in the price of dental services of about 11 percent. This result is in the low range of estimates of between 8.5 and 18 percent found by Shepard in the 1970s for the effect of restrictive dental licensing on prices and is consistent with the statistical results cited in the literature review.” They also find (p. 573) that “dentists in the most regulated states earn a statistically significant 12 percent more than practitioners in the least regulated states.” They further find (p. 570) that “treatment quality does not appear to improve significantly on the basis of the reduced cost of malpractice insurance or a lower complaint rate against dentists where regulation is more stringent.” Overall, they conclude (p. 547): “tougher licensing does not improve outcomes, but it does raise prices for consumers and the earnings of practitioners.”… “increased licensing restrictiveness did not improve dental health, but it did raise the prices of basic dental services… states with more restrictive standards provided no significant greater benefits in terms of lower cost of untreated dental disease…. more regulated states have somewhat higher dental prices … more regulated states have dentists with higher earnings.” (p. 575). They further state (p. 576): “These results are consistent with the view that tougher licensing standards imposed by the most rigid state statutes and administrative procedures may be an unnecessary restriction on entry with little or no benefit to the public. Consequently, moving toward more restrictive policies that limit consumer access to those services could reduce the welfare of consumers.”

Impact on Pay of Incumbents and Hence Labour Cost

Powell and Vorotnikov (2012) provide evidence from Real Estate regulators in Massachusetts that adding a continuing education requirement reduced the number of licensed agents (and hence the availability and choice of services for clients) by between 39-58 percent. This in turn increased the incomes of incumbent practitioners by 11-17 percent, with no effect on the quality of service.

In an early Canadian study on the effect of occupational regulations on earnings, Muzondo and Pazderka (1980, p. 666) find: “on average, individuals in professions which restrict advertising earn 32.8 percent more than individuals in professions in which advertising is unrestricted, ceteris paribus. On average, individuals in professions in which fee competition is restricted earn 10.4 percent more than individuals in professions in which there is unregulated fee competition, ceteris paribus.” Even though their data only enabled them to examine the impact of two practices that restrict competition (prohibitions on advertising and on fee competition), their analysis does suggest that restrictions on competition do enhance the earnings of incumbents in the occupation.

Overall, the results from the various studies suggest that occupational licensing regulations typically raise the earnings of incumbents in the profession or trade by 10-20 percent. Bryson and Kleiner (2010) and Gittleman and Kleiner (2013) both conclude that 15 percent is a reasonable approximation based on their reading of the literature. This is a sizable figure, and certainly can explain why licensing is coveted by those in the profession or trade.
Impact on Prices and Cost of Service

The higher pay from occupational licensing and restrictions on who can practice should lead to an increase in the price of their services. Evidence on this was presented in a number of studies cited above. On a more systematic basis, Kleiner (2006, p. 59-62) reviewed 12 US studies, all of which found that the restrictions raised prices. The occupations include optometry, pharmacy, dentistry and legal work. The restrictions include: the lack of reciprocal recognition of the credentials from other jurisdictions; restrictions on advertising that could otherwise foster competition; restrictions on the use of dental hygienists; commercial practice restrictions; and restrictions on the pass rate for obtaining a license. Kleiner (2006, p. 59) concluded: “The impact of licensing-related practices on prices range from 4 to 35 percent, depending on the type of commercial practices and location.” This also led to a 20% reduction in employment growth in occupations that were licensed compared to those that were not licensed. (p.146). More generally, he concludes that the evidence of higher prices combined with little or no effect on the quality of the service leads to consumers being worse off from the regulations. Specifically, Kleiner (2006, p. 63) states:

“The analysis of studies of licenced occupation finds that the impact of regulation on the quality of services received by consumers is murky, with most of the studies of this issue showing no effects on average consumer well-being relative to little or no regulation. On the other hand, most of the studies of licensing find that prices are higher for services with higher levels of regulation. From these studies of occupational regulation, it appears that higher-price effects dominate potential modest impacts on quality. Consequently, occupational licensing’s effect is generally negative on consumer well-being.”

Impact on Quality of the Service

Obviously, the higher pay of incumbents in a regulated occupation and the higher price and hence cost of the service, could be justified if the more stringent regulations improved the quality of the service. But the evidence, some of which was provided in studies cited above, suggests that this is not the case.

Compulsory certification can have negative effects on the quality of the service through a variety of mechanisms. Higher prices from the regulations (documented previously) means that some consumers may not buy the service, effectively getting zero quality. Others may substitute into unregulated or do-it-yourself services of lower quality. As stated by Muzondo and Paderka (1980, p. 660):

“Critics of economic regulation of the professions point out that it leads to higher fees for services provided by ‘qualified’ practitioners. Faced with such fees, some consumers turn to inferior substitutes (including do-it-yourself alternatives …) so that the overall result is a lower average quality of services consumed than would obtain in the absence of regulation.”

Or as stated by Ostry (1978, p. 23):

“We must recognize that licensing is likely to raise the price of the professional service and that its influence on the quality of professional care could quite possibly be perverse. For example, by imposing sufficient entry requirements we could ensure that Ontario has the most highly qualified barbers anywhere. But the result would not necessarily be an improvement in the quality of male coiffure in the province. Faced with higher prices and a lack of low-cost alternatives some males would probably seek out hair cutting services of their wives; others would just go without a haircut for longer than usual. The effect of licensing restrictions, therefore, could conceivably be to make Ontario males a shabbier-looking lot than before.”
KKleiner (2006, p. 43) cites a more extreme case of substituting into a do-it-yourself procedure based on a man who performed his own root canal work because “he had no dental insurance and stated that the cost of going to a dentist was just too much for his limited budget.” While that is obviously extreme, installing your own sprinkler system or having a family member cut your hair, or shifting to the underground economy are obvious alternatives to higher prices and reduced availability of compulsory trades. Shapiro (1986) also provides US evidence of such a shift to non-regulated services.

Incumbent practitioners may not feel pressure to provide high-quality service since their jobs are secure and they are protected from non-licensed practitioners who may try to compete on the basis of a reputation for quality – but they cannot practice the trade. Potential practitioners who are considering entering the trade may be deterred by the restrictive practices, with those who are skilled perhaps going to alternative jobs, with those who are less skilled and with fewer alternatives entering the protected trades. Clearly, regulations designed to protect the public from low quality practitioners may have the unintended consequence of fostering lower quality services. Further evidence cited below bears this out.

Phelan (1974) conducted field studies in the US by sending TV sets with known defects to repair services, some of which had licenced individuals and others unlicensed. He found the licenced services were more likely to give fraudulent recommendations for repairs compared to those that were not licensed. This suggests that licensing does not protect consumers from low quality services, at least as measured by fraudulent repair recommendations. Perhaps the licensed services “hid behind the veil” of the ostensive protection that licensing was to protect the consumer from low quality service, or they felt that consumers were less likely to question their recommendation if they were licenced.
IIn a more recent field experiment, Carpenter (2012) had floral experts judge the quality of the floral arrangements of florists in a state (Louisiana) where they are licenced compared to florists in a state (Texas) where a license is not required to practice the trade. The judges found no difference in the quality of the flower arrangements, but they were more expensive when a license was required to practice in the trade.

With respect to teachers in the US, Goldhaber and Brewer (2000) find that licensing had no effect on the quality of their service as measured by student achievement scores, although it did increase the pay of teachers. The same lack of an effect on teacher quality from the additional requirement of testing for licensed teachers was found in Angrist and Guryan (2003).

As mentioned previously, Kleiner and Kudrle (2000, p.575, 576) found that

“more stringent regulation does not appear to affect some indirect measures of service quality, such as lower malpractices premiums or fewer patient complaints … states with more restrictive standards provided no significant greater benefits in terms of lower cost of untreated dental disease… Our estimates of the price equations show that more regulated states have somewhat higher dental prices. In addition, more regulated states have dentists with higher hourly earnings. These results are consistent with the view that tougher licensing standards imposed by the most rigid state statutes and administrative procedures may be an unnecessary restriction on entry with little or no benefit to the public. Consequently, moving toward more restrictive practices that limit customer access to these services could reduce the welfare of consumers.”

In a subsequent study, Kleiner (2006) compared the quality of the service in occupational therapy, practical and vocational therapy and clinical psychology. These are occupations in which malpractice insurance is common, with higher rates being a sign of poor quality service that led to insurance claims. He finds no difference in insurance rates for practitioners where the state requires a licence to practice and those that do not, suggesting no differences in the quality of their services depending upon whether they were licensed.

Powell and Vorotnikov (2012) indicated that Real Estate regulators in Massachusetts added a continuing education requirement under the rationale of enhancing the quality of the service for the public. They provided evidence that the additional requirements had no effect on the quality of service as measured by complaints to the licensing board. As indicated previously, the more stringent regulation reduced the availability and choice of services for clients by reducing the number of licensed agents between 39-58 percent. This in turn increased the incomes of incumbent practitioners by 11-17 percent. Incumbents would receive these benefits without having to confront the cost since they were grand-parented from having to meet the new requirements.

Carroll and Gaston (1981) examine the effect of the licensing of dentists, electricians, plumbers, real estate agents, optometrists and veterinarians in the United States. They find that licensing did increase the quality of the service, but the restrictions on entry decreased the number of practitioners. As a result some clients did not receive any service. This negative effect of fewer persons receiving any service, more than offset the higher quality service for the fewer clients who received the service, so that the overall quality of the service declined. This is an important finding since it highlights that in judging the overall effect of regulations on the quality of the service, it is important to consider the fact that regulations can lead to fewer service providers and higher prices for the services, resulting in some clients getting no service. There can be a trade-off between higher quality for some, and zero quality for others.

Benham (1972) and Benham and Benham (1975), for example, found that prices for eyeglasses were 25 to 40 percent higher in markets where there was greater occupational control, and that this in turn led to a significant reduction in the proportion of individuals obtaining eye glasses in a given year. In essence, even if those who got eyeglasses received higher quality service (and there is no evidence that this is the case), the higher prices led to many getting zero quality through not buying any glasses. The restrictions also had a disproportionate adverse effect on less educated persons since they faced the greatest increase in prices and hence would be more likely to not purchase glasses at all.

Health and Safety and Public Health

As discussed previously, compulsory certification and licensing is generally rationalized on the grounds of protecting the public, especially when issues of workplace health and safety and general public health and safety are involved. The hope is that compulsory certification can reduce the number of low-quality providers who may otherwise jeopardize their own health and safety or that of co-workers at the workplace as well as that of the public who consume their services.

The same arguments advanced earlier on the mechanisms where compulsory certification can possibly have negative effects on the quality of the service applies to possible negative effects on health and safety at the workplace and public health in general. Higher prices from the regulations (documented previously) mean that some consumers may not buy the service, effectively getting zero health and safety protection if the service involved health provision. More likely others may substitute into underground services with substantial risks to the health and safety of workers. Or they may expose themselves to risk by doing the job themselves -- the do-it-yourself root canal procedure mentioned earlier being an extreme example. Incumbent practitioners may not feel pressure to provide health and safety protection to co-workers or to the general public since their jobs are secure and they are protected from non-licensed practitioners who may try to compete on the basis of a safe product – but the non-licensed practitioners cannot practice the trade. Potential practitioners who are considering entering the trade may be deterred by the restrictive practices (e.g., if excessive amounts of health and safety training are required), with those who are more skilled perhaps going to alternative jobs, but with those who are less skilled and with fewer alternatives entering the protected trades, exposing co-workers and perhaps consumers to health and safety risks if they are related to their being less skilled. Clearly, regulations designed to protect the public from low quality practitioners may have the unintended consequence of fostering health and safety risks. A limited amount of evidence cited below bears this out.

Much of the evidence on licensing having no effect or a negative effect on the quality of services used, as discussed in the previous section, used malpractice insurance rates or complaints to state licensing boards as proxies for the quality of the service. Obviously, these indicators, and especially malpractice insurance rates, can be good measures of the health and safety risk associated with the service. No evidence of higher insurance rates in unlicensed occupations was found for dentists in Kleiner and Kudrle (2000) or for occupational therapists, practical and vocational therapists and clinical psychologists in Kleiner (2006). These suggests that compulsory licensing had no effect on health and safety risks.

The extreme case, cited in Kleiner (2006, p. 43) of a man who performed his own root canal work because “he had no dental insurance and stated that the cost of going to a dentist was just too much for his limited budget” is an example of substituting into “do-it-yourself” procedures that can expose the individual to extreme risk. While this is an extreme example, it is not hard to imagine individuals doing other “do-it-yourself” jobs or procedures that could expose themselves or the general public to health and safety risks.

Ostry (1978) cites evidence from a variety of studies of regulation in the Canadian trucking industry and indicates (p.22): “No evidence was found in this work that carriers in the provinces that required licensing were as a rule safer than those in Alberta” [that did not require licensing].

Importantly, in the health and safety area there are other viable mechanisms to provide for the health and safety of workers. Health and safety regulations prevail at the workplace. If these are inadequate then the appropriate response would seem to be to improve on these regulations since they apply to workers in general, and not just to those in certified trades. As stated by Beatty and Gunderson (1978, p. 48):

“systems of public inspection, standards legislation, public codes of conduct for salaried employees and schemes of civil liability and consumer protection properly applied can be expected to safeguard the public safety and security… Indeed a system utilizing publicly employed experts who could inspect and assess the procedures by which skilled services are rendered, projects are built and products manufactured, is one which has recently received a positive endorsement from another Task Force [Dymond 1973, p. 170, 171] as being a viable alternative to the compulsory certification of skilled trades in Ontario…. As a general bias we have more confidence in such schemes of public regulation which, unlike systems of self-regulation, are not a susceptible to being diverted to one’s own self-interest.”

Impact on Entry into Occupation for Specific Groups: Immigrants, Aboriginal Persons, Women and Youth

The negative effects of compulsory certification and licensing as outlined above are likely to disproportionately fall on groups like immigrants, Aboriginal persons, women and youth for various reasons. As potential practitioners in the trades, they are likely to be excluded from entering the trade for various reasons. Immigrants (who are often visible minorities), Aboriginal persons and women may face discrimination, and the more coveted the positions because of the artificial pay premiums or rents, the greater the extent of discrimination to exclude “outsiders.” Immigrants may face barriers in having their foreign credentials recognized as discussed previously. They may also face barriers if language requirements are imposed. Aboriginal persons may not meet certain education requirements given their high dropout rate, and they may have difficulties accessing the classroom training components as well as the on-the-job training component of apprenticeships given that they often live in isolated communities, including reserves. Because youth are generally potential new entrants into the trade and not incumbents, they may be excluded by the restrictive practices.

Such groups, and disadvantage persons in general, may also lose as consumers of the services because of the higher prices and reduced availability of the services when they are subject to stringent compulsory certification and licensing requirements. This is especially the case if they are low income consumers who cannot afford the higher priced services.

Limited evidence suggest that these negative effects exist. For example, Dorsey (1980, p. 424) finds:

“Data on applicants for licenses in a nonprofessional occupation reveal that the less educated, blacks, apprentices, and other specific groups are more likely than others to fail the exam, even though they do not appear to be less able than workers who are admitted. These results suggest that occupational licensing can restrict the labour market opportunities of groups of workers whose alternatives are already limited, and that licensing has distributional as well as price and output effects.”

Cathless, Harrington and Krynski (2010) provide US evidence that more stringent licensing requirements for funeral directors reduced the number of women relative to men in that occupation by about 20 percent.

Discrimination and harassment can also be an important barrier against entering the trades for particular groups such as visible minorities, immigrants, Aboriginal persons, disabled persons and women, especially in many of the conventional male-dominated apprenticeship trades. Obviously, requiring compulsory certification makes entry into the trade a necessary condition to practice, opening the opportunity for such potential discrimination. Canadian evidence on this is provided in various sources including: Brigham and Taylor (2006), CAF (2004), CLFDB (1995), Stoll and Baignee (1997), Sweet (2003) and Sweet and Gallagher (1997).

Flexibility, Innovation and Adaptability to Technological Change

Flexibility and adaptability to technological change are key to productivity and competitiveness in the global economy and the “new world of work.” As indicated in Gunderson (2002, p. 12), this has led to substantial changes in the design of jobs and their scope of practice:

“Job enlargement involves expanding the horizontal breadth of the job with employees doing a wider array of tasks at a similar level. Job enrichment involves expanding the vertical depth of the job with employees doing different jobs at different levels…Broader-based job classifications would accommodate this multi-tasking associated with the greater width and depth of jobs. The intent is to rid the workplace of the phrase “it’s not my job.” Job rotation and multi-skill training were often introduced to equip the employees to do the wider range of jobs.”

Compulsory certification and licensing can reduce flexibility in how a job is done, as well as reducing innovation and adaptability to technological change. If all aspects of the job have to be done by those with the exclusive-right-to-practice the trade or profession, then obviously this prevents others from doing those tasks even if the tasks are basic and can be done as well or perhaps even better by others who are less expensive. It also prevents those who are licensed in one trade from doing even a small task that is within the scope of practice of another licensed trade. Such restrictions are against the trends towards job enlargement, job enrichment, broader-based job classifications and multi-tasking as indicated above, and that are an integral part of the “new world of work” with its emphasis on flexibility and adaptability. The restrictions are part of the “old world of work” with its emphasis on narrow and restrictive job classifications and scopes of practice.

Incumbents in the trade or profession may have little incentive to embrace technological change since their jobs are protected and are earning artificial pay premiums (economic rents) in the current state of technology. Why “rock the boat” by innovating or adjusting to technological change?

The practice of grand-parenting incumbents from new requirements that may be added to the scope of practice of the jobs also inhibits technological change. If technological change does occur in the trade or profession and it requires new procedures to practice the trade, the cost of learning these new procedures can be placed on potential new entrants through additional training or other requirements. Incumbents in the trade are typically exempted (grand-parented) from having to learn these new requirements. This means that they are not skilled at using the new technology and hence less skilled in practicing their trade or profession. This in turn will increase their resistance to technological change.

Direct evidence that compulsory certification or licensing fosters resistance to flexibility, technological change and innovation in the trades and professions is not common. Muzondo and Pazderka (1980, p. 660) state that the critics of occupational certification “argue that economic regulation of the professions usually stifles innovation.” Federman, Harrington and Krynski (2006) describe Vietnames manacurists as “geographical pioneers, spreading out as they establish new nail salons throughout the country” (p.24) and having “pioneered the ubiquitous, stand-alone nail salon.” (p. 241). Ostry (1978, p. 19) indicates that such restrictions “have a substantial effect in … impeding innovation and change” and she cites evidence from a British Monopolies Commission that examined restrictive practices in occupations and concluded that such practices resulted in (p. 19): “higher prices, less efficient use of resources, discouragement of new developments and a tendency towards rigidity …[and] delay the introduction of new forms of service.” She further concludes: “the result of various professional restrictions has most certainly been to delay, if not prevent, the introduction of new forms of service and to lend support to the inefficient and uninnovative practitioner.” (p. 20)

Evidence that rigidities in the compulsory trades deterred employers from providing apprenticeships is provided in CAF (2009, p. 18). Their survey evidence indicated: 30% of Canadian employers indicated they could not provide apprenticeships because they could not provide continuous employment for taking on additional workers; 25% indicated their business was too small; and 14% indicated it required too much time of journeyperson.

Kleiner’s Seven Case Studies

Kleiner’s (2013) seven case studies are based on occupations that range from limited regulation (e.g., only the exclusive-right-to-title) to extensive regulation (e.g., the exclusive right-to-practice). This enables seeing how their impacts (e.g., on pay) are greatest the more extensive their regulation and the longer they have been regulated.

At the low end of the regulatory spectrum Interior Designers are a newly regulated occupation and generally only have the voluntary designation of the exclusive right-to-title, with others being able to practice the trade. This limited regulation had a small and statistically insignificant effect on their pay and employment.

At the low to moderate end of the regulatory spectrum, the certification of Mortgage Brokers has little or no effect on their pay. In some states, however, brokers are subject to additional restrictions such has needing to have a security bond or to maintain a minimum net worth. These additional regulations had a statistically significant association with higher pay and reduced employment. They also had negative effects on consumers in the form of fewer mortgages, higher foreclosure rates and higher mortgage rates, suggesting that the additional regulations reduced entry into the profession with negative effects for consumers.

Also at the moderate end of the regulatory spectrum and in the early stages of evolution with enforcement being weak, the certification of Childcare Workers had no effect on their pay or on the quality of their service as indicated by the early childhood academic achievement of pre-school age children.

At the higher end of the regulatory spectrum, the compulsory certification of Plumbers and Electricians in the construction industry was generally associated with an increase in their pay of around 6 to 8%. Additional local requirements for electricians are associated with an additional increase of around 12% in their pay. This highlights that the more stringent the regulation, the higher the pay. There is little evidence of any effect on injury rates or workplace safety.
AAt the high end of the regulatory spectrum, Dental Hygienists and Dentists are extensively regulated with the exclusive right-to-practice with moderate to high effects on their pay.

Compulsory Trades in Construction

The construction sector merits separate attention for a number of reasons. It is a sector where the ostensive rationales for compulsory certification are often raised. These rationales are: to protect the public from poor quality service that can be difficult to gauge; to protect against health and safety risks that can occur both for consumers of the service and on the job (it is a sector where health and safety risks are high); and to increase labour supply to the trade so as to alleviate labour shortages.
CConstruction is also a sector with other characteristics that give rise to problems arising from compulsory certification. This include: the prominence of compulsory certifications; rigidities associated with the apprenticeship system which is an integral part of compulsory certification in construction; cyclical and seasonal demand fluctuations that give rise to cob-web type adjustments with their associated shortages and surpluses; and the prominence of substitutes including do-it-yourself procedures and the underground economy. Each of these are expanded upon below, with an emphasis on the relationship to compulsory certification.

As indicated in Table 1 based on Ellis Charts for construction trades, there is extensive variation in the number of compulsory trades across jurisdictions in Canada, ranging from one or two in the territories, to six in British Columbia to 54 in Quebec. As well, there is variation in the types of trades that require compulsory certification. This would seem to call in to doubt that compulsory certification is necessary to protect the public from poor quality service or health and safety risks, or to alleviate labour shortages. If these rationales were appropriate, surely they would not vary so extensively across the different jurisdiction or trades so as to give rise to such variation in the compulsory certification of trades. Other explanations for this variation across jurisdictions and trades are offered in a subsequent section on the inconsistent patterns of regulation.

As indicated, the apprenticeship system is a key characteristic of the construction sector with its large number of compulsory certified trades. There has been extensive criticism of a number of rigidities in the compulsory trades that may deter employers from employing apprentices and/or that can restrict potential individuals from entering or completing the apprenticeship.

Setting the apprenticeship wage “too high” can deter employers from providing apprenticeships. Evidence on this perception in Canada is provided in Marquart (1998, p. 12) and Sharpe and Gibson (2005, p. 62) who indicate that Canadian employers pay three times the cost for training an apprentice compared to their European counterparts.

Requiring a high ratio of journeypersons to apprenticeships can also deter employers from providing apprenticeships to the extent that is difficult for them to find or “free-up” sufficient journeypersons, especially in smaller establishments. A high ratio can restrict entry into the trade since potential new entrants may find it difficult to be matched with a sufficient number of journeypersons (CAF, 2004; Brydon and Dachus 2013).

Requiring a high amount of classroom training and block release time can also deter employers from providing apprenticeships, especially if it leads to disruptions to production. Canadian evidence on this concert is provided in CAF (2004), Kunin (2002), and Sharpe and Gibson (2005, p. 64). The classroom training can also be difficult for persons in smaller isolated communities, such as Aboriginal persons, who may have to travel considerable distance to get the institutional training.
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Evidence that rigidities in the compulsory trades deterred employers from providing apprenticeships is provided in CAF (2009, p. 18). Their survey evidence indicated: 30% of Canadian employers indicated they could not provide apprenticeships because they could not provide continuous employment for taking on additional workers; 25% indicated their business was too small; and 14% indicated it required too much time of journeypersons.

Cobweb style adjustments can also be prominent in construction given the cyclical and seasonal fluctuations as well as its “boom and bust” nature that has led to uncertainty and adjustment problems that are exacerbated by the rigidities and lags that result from compulsory certification. Cobweb cycles were first applied to labour markets by Arrow and Capron (1959) and Freeman (1975, 1980). In such cobweb cycles a demand increase occurs arising from such factors as a cyclical expansion or some mega projects coming on-stream. The resultant temporary labour shortages foster increases in wages and job opportunities. Workers respond by moving to the expanded opportunities and/or by taking the training necessary to acquire the necessary skills. Such mobility or training, however, often takes time because of the costs and lags in the system. The apprenticeship system, for example, has entry restrictions as well as low completion rates and long-times-to-completion. Sharpe and Gibson (2005, Tables 2, 3) indicate that completion rates have fallen sharply from 63% in 1982 to 39% by 2002. Prasil (2005) documents that of those who registered in 1992, only about half had completed within 11 years, while the remainder had dropped out or were still continuing. These long lags mean that the demand increase may have dissipated by the time any supply influx hits the market, leading to an oversupply of persons in those trades. This oversupply can lead to wage reductions and unemployment, which in turn lead to a reduction in labour supply as people leave those areas and do not engage in the training in those trades. Such a cobweb model of shortages, wage increases, over-adjustments, wage decreases etc. can be fostered by the uncertainties and lags in the compulsory certification system in construction.

The construction industry is also characterized by prominence of substitutes including do-it-yourself procedures and the underground economy, especially for residential construction.

 

O’Grady and Lampert (1998), for example, estimate that the underground economy in construction in Ontario accounted for 28% of employment, being 39% in the residential sector, ranging from a low of 17% in new housing to 56% in renovations and 67% in repair. The Canadian Home Builders Association (2000, p. 2) cites the Ontario Contractors Association estimate of 58,000 to 79,000 underground jobs in new home building. The Nova Scotia Department of Finance (1997) estimates that almost half of the value added of the home building sector in that province was from the underground economy. The importance of the underground economy in construction highlights that it can be a viable substitute for the compulsory trades if they become too prominent or rigid in their requirements.

This is also the case for “do-it-yourself” alternatives fostered by television, YouTube instructions, the internet and “big- box” retailers like Home Depot where staff are often trained in the skill-trades so as to provide advice to customers. Shifting from voluntary certification to compulsory certification can require that the work be done only by those with the compulsory certification, but this can also foster a shift to do-it-yourself substitutes as well as the underground economy. In such circumstances, it is not clear that the general public receives greater protection.
A number of studies have also examined the effect of compulsory certification in construction trades. In his econometric analysis of electricians and plumbers in the construction industry, Perloff (1980, p. 425, 426) concludes:

“The chief implication of this study is that licensing laws, in addition to having a once-and-for-all effect on wages, are responsible for some of the large wage increases in the late 1960s and early 1970s by preventing wage equalization between industries. Elimination of these restrictions would thus, allow greater equalization of wages between construction and manufacturing and hence increase efficiency.”

Skarbek (2008) analysed licensed roofers in the construction trade in Florida at the time of the emergencies that resulted from Hurricanes Frances and Katrina in 2004 and 2005. He argues that consumers should have less ability to judge the quality of the service during times of such emergencies. They have less time to garner information and to shop around. As well, if roofing contractors come in from other other trades or areas their reputation for quality is unknown. In spite of this reduced ability of consumers to judge the quality of the service in times of such emergencies, the government of Florida reduced the licensing restrictions to allow general contractors and contractors from out of the state to do roofing construction in Florida. This increased entry into the trade fostered a large increase in the supply of roofers with little effect on the quality of the service, implying that the earlier restrictive licensing requirements reduced entry into the trade and reduced supply. This leads Skarbek to conclude that such licensing restrictions should be reduced on a more permanent basis. He concludes (p. 81):

“If citizens of Florida are capable of judging the quality of roofing services in the wake of Hurricanes Frances and Katrina, then why are then not capable of doing so in non-crises situations when they have more time to gather information?... Coupled with the explicit admission that reducing licensing requirements increases the supply of roofers, individuals should be free to hire out-of-state roofers year round. Florida’s post-hurricane reforms should be extended to citizens in time of calm as well as crises.”

Kleiner and Park (2010) examine the effect of occupational licensing on electricians and plumbers in the construction industry. They indicate (p.12):

“The general issue of occupational regulation has particular relevance to the potential health and safety of plumbers and electricians, which is the occupation group that had the largest number of occupation deaths of any blue-collar occupation. In addition, construction occupations also are among the ones that suffer the highest injury rates.” Based on their econometric analysis they conclude (p.2): “Overall, occupational regulation does not seem to impact the severity of injuries for either electricians or plumbers…We find that measures of occupational regulation have little influence on the death rates in the construction industry of electricians and plumbers.”

Clearly, compulsory certification in the construction industry exhibts similar outcomes as occupational licensing in the professions and compulsory certification in the trades in general. These include: reduced entry into the trades; restricted mobility; reduced labour supply and employment; higher wages; higher costs and prices; with little or no effect on the quality of the service. In such circumstances, it is certainly legitimate to question the desirability of shifting from voluntary certification to compulsory certification.

Tendency to Ratchet Up The Regulatory Ladder

Given the benefits to the trade or profession, occupational groups clearly have an incentive to become regulated. And those that have only voluntary certification with only the exclusive right-to-title, have an incentive to move up the regulatory ladder towards more stringent regulatory requirements involving compulsory certification with the exclusive-right-to-practice, because this reduces entry into their trade, enhancing their pay and employment security. They also have an incentive to add additional regulatory requirements (e.g., education and training requirements, residency or citizenship, recommendations from current practitioners, competency testing, and altering the pass rate on exams). With respect to moving from voluntary to compulsory certification, Kleiner (2006, p. 5) states: “The path towards licensing usually includes initially becoming either certified or registered, but hardly ever does an occupation move from licensing to certification where others can legally do the work of certified practitioners.” The added cost of acquiring the additional credentials or the exclusive-right-to-practice deters new entry to the trade, enhancing the pay and job security of incumbents. Since incumbents invariably are exempt from having to meet the new requirements through grand-parenting clauses, they get the benefit of higher pay and job security without bearing the cost.

In his subsequent case studies of various stages of regulation, Kleiner (2013) highlights that the ratcheting is invariably upwards as opposed to downwards in the regulatory requirements. Those case studies highlighted that the longer the regulatory bodies were in existence, the greater the stringency of the regulations and restrictions they imposed, and the greater their impact on enhancing the pay of incumbents and raising the price of their services.

Kleiner (2006, p. 13) cites “one rare example” when an occupation was “de-licensed”: the occupational licensing of watchmakers was eliminated in Minnesota when the number of persons in the occupation in the state dropped to less than 100 individuals.”

Marks and Law (2012) highlight how nursing in the US started from voluntary certification that granted only the exclusive right-to-title, to compulsory licensing largely after 1950, that granted the exclusive right-to-practice.

The tendency for occupations to seek licensing is highlighted by Lieberman (1978, p. 89):
“At a single session of the Wisconsin legislature in the early 1950s, the following occupational groups sought laws requiring that their ‘practitioners’ be licensed: caterers, canopy and awning installers, cider makers, coal dealers, dancing school instructors, egg breakers, frog dealers, labour organizers, meat cutters, music teachers, and beer coil cleaners.”

Clearly, the gains to incumbents provide an incentive to move up the regulatory ladder and to pull the ladder up behind them to deter entry and protect their privileged position. Non-regulated occupations have an incentive to become regulated, those with voluntary certification have an incentive to become compulsory, and all have an incentive to increase the stringency of their regulatory requirements. These are all facilitated by the fact that this can be done under the rubric of protecting the public.

Inconsistent Patterns of Regulation

If protecting the public were the true rationale for occupational regulation, one would expect to see a reasonably consistent pattern of regulations across different jurisdictions. As indicated previously, granting compulsory certification could be justified if all four of the following conditions were met: it is difficult for users to judge the quality of the service; the service is infrequently used; poor quality service could have severe negative consequences; and there are not viable alternatives to compulsory certification to achieve those same ends. If these conditions apply to an occupation in one jurisdiction, they would likely apply to that occupation in other jurisdictions. But such a consistent pattern does not seem to prevail.

As indicated previously in Table 1 based on Ellis Charts for construction trades, there is extensive variation in the number of compulsory trades across jurisdictions in Canada, ranging from one or two in the territories, to six in British Columbia to 54 in Quebec. As well, there is variation in the types of trades that require compulsory certification. Surely, if protection of the public justifies compulsory certification in a particular jurisdiction, it would justify such certification across other jurisdictions.

Kleiner (2006, p. 100, 101) tabulates the number of licensed occupations (both professions and trades) in the various states in the US. They range from 178 in California to 47 in Kansas. It seems odd that the public in California requires that much more protection than the public in Kansas.

If protecting the public does not seem a consistent rationale, what explains the inconsistent pattern? The varying lobbying power of the interest groups and the receptivity of politics in the different jurisdictions, would seem to be an explanation.

As stated by Tuohy and Wolfson (1978, p.112) “The achievement of self-regulatory status may reflect the success of a political strategy before particular governments as much as or more than it reflects a functional necessity.”

Kleiner (2000, p. 199) also states: “Recent work in political economy suggests that political influence and funding of licensing initiatives by the professions are the most important factors influencing whether an occupation becomes regulated by the states.”

Kleiner (2006, p. 31) states:

“In Minnesota, as in many other states that regulate occupations through the legislative process, licensing appears to be responsive to political pressure from occupational associations seeking to become regulated. Occupations that are well organized and have well-funded campaigns with no organized opposition are more likely to find themselves at the top of the agenda before occupational regulatory commissions. This is consistent with other evidence from Illinois.”

Alternatives to Compulsory Certification

The previous discussion highlighted that the authority that grants the power of compulsory certification or licensing to a self-governing body should be aware that the more stringent the regulatory requirements the greater the gain to the incumbents in the protected occupation and the greater the costs to the general public. This creates an incentive for incumbents to use pressure to move up the regulatory ladder in terms of stringency, and to pull up the ladder behind them so as to reduce entry. They have an incentive to increase the stringency of regulatory requirements, but to use grandparent clauses to exempt themselves from meeting those requirements.

It is also important to remember that alternatives can often exist to compulsory certification. Health and safety requirements can protect workers and the general public As stated by Beatty and Gunderson (1978, p. 48): “systems of public inspection, standards legislation, public codes of ethics for salaried employees and schemes of civil liability and consumer protection legislation properly applied can be expected to safeguard the public’s safety and security.” This view has also been expressed by the earlier Dymond (1973, p. 170-171) task force as a viable alternative to the compulsory certification of skilled trades in Ontario.

Tuohy and Wolfson (1978, p.115) state: “Regulation is not the only way of protecting such [public] interests: the state also has at its disposal judicial instruments, such as the definition of civil liability, and fiscal instruments such as subsidies for training or service, which may be preferable to or supplementary to regulation.”

Importantly, voluntary certification can often be a viable alternative to compulsory certification, although those protected by voluntary certification will generally want to move up the regulatory ladder to attain compulsory certification. Voluntary certification enables users of the service to make a choice as to whether they want to pay a likely premium for the certified service. They may choose to use a certified service even if it is more expensive if they face the conditions outlined previously: it is difficult for them to judge the quality of the service; the service is infrequently used; poor quality service could have potential severe negative consequences; and there are not viable alternatives. But they may opt for a less costly non-certified service if, for example, they can judge the quality of the service because of the reputation of the provider, or they are going to use the service frequently and hence it pays for them to become informed, or if the consequences of a poor quality service are not severe, or if they have an alternative such as a recommended provider.

In that vein, voluntary certification can often be a viable alternative to compulsory certification. As stated by Kleiner (2006, p. 7): “certification may provide many of the same benefits as licensing without the cost of restricting the supply of practitioners or limiting choice for consumers…. if a signal of quality is important, certification is a better way of accomplishing the goal than occupational licensing.”

In discussing voluntary certification, Kleiner (2000, p. 200) further states:
“This potential substitute for licensing allows consumers or employers to choose whether they are willing to pay a higher wage for someone with greater state-documented skills relative to someone with fewer job characteristics. It is possible to believe that certification would have lesser effects on the prices charged or the wages of an occupation, because it would not restrict supply as tightly, and also that it would have lesser effects on quality. Thus, it offers and intermediate choice between the extremes of no state role in qualifications at all and the absolute requirement of having a licence before working at certain occupations.”

In his latest work, Kleiner (2015, p. 2) states one of his key recommendations for reforms that:

“certain occupations that are licensed would be reclassified to a system of certification or no regulation… If federal, state, and local governments were to undertake these proposals, evidence suggests that employment in these regulated occupations would grow, consumer access to goods and services would expand, and prices would fall.”
If he recommends moving from compulsory certification and licensing to voluntary certification or no licensing, he would certainly be skeptical of moving in the other direction from voluntary to compulsory certification.

Voluntary certification is increasingly a viable alternative to compulsory certification especially in the internet age when it is easy to acquire information on the quality of services through the internet. Aware of this possibility, providers of such services are increasingly sensitive to the fact that their reputations can be damaged by bad reviews and ratings, and enhanced by good reviews and ratings. The rationale for compulsory certification based on the difficulty of judging the quality of a service has dissipated in the age of the internet where information is ubiquitous.

The overwhelming evidence from rigorous studies of occupational licensing and compulsory certification (including in the construction industry) indicates that they have the following effects: reduced entry into the trades; restricted mobility; reduced labour supply and employment; higher wages; higher costs and prices; and little or no effect on the quality of the service. In such circumstances, it is certainly legitimate to question the desirability of compulsory certification. It is espccially legitimate to question the desirability of shifting from voluntary certification to compulsory certification since voluntary certification provides the information benefits to users without the negative consequences.

REFERENCES
Allison, Dean (Chair) 2008. Employability in Canada: Preparing for the Future. Report of the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities. Ottawa: House of Commons.
Angrist, J and J. Guryan. 2003. Does teacher testing raise teacher quality? Evidence from state certification requirements. NBER Working Paper 9545.

Arrow, K. and W. Capron. 1959. Dynamic shortages and price rises Quarterly Journal of Economics 73: 292-308.
Bauder, H. 2003. Brain abuses, or the devaluation of immigrant labour in Canada. Antipode, 35: 700-717.

Beach C., A. Green and C. Worswick. 2011. Toward Improving Canada’s Skilled Immigration Policy: An Evaluation Approach. Toronto: C.D. Howe Institute.
Beatty, David and Morley Gunderson. 1978. The Employed Professional: Accountants, Architects, Engineers and Lawyers in Ontario, Toronto: Professional Organizations' Committee, Ministry of the Attorney General.

Benham, Lee. 1972. The effects of advertising on the price of eyeglasses. Journal of Law and Economics. 15: 337-352.

Benham, Lee and Alexandra Benham. 1975. Regulating through the profession: a perspective on information control. Journal of Law and Economics. 18: 421-427.

Benham, Lee and Alexandra Benham. 1978. Prospects for increasing competition in the professions. In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 41-45.

Bloom, Michael and Michael Grant. 2001. Brain Gain: The Economic Benefits of Recognizing Learning and Learning Credentials in Canada. Ottawa: Conference Board of Canada.

Brigham, Susan and Alison Taylor. 2006. Youth apprenticeship programs for Aboriginal youth in Canada: Smoothing the path from school to work? Canadian Journal of Native Education. 29: 65-181.

Brydon, Robbie and Benjamin Dachis. 2013. Access Denied: The Effect of Apprenticeship Restrictions on Skilled Trades. Toronto: C.D. Howe Institute.

Bryson, Alex and Morris Kleiner. 2010. The regulation of occupations. British Journal of Industrial Relations. 48(4): 670-675.

CAF. 2004. Accessing and Completing Apprenticeship Training in Canada: Perception of Barriers. Ottawa: Canadian Apprenticeship Forum.

CAF. It Pays to Hire an Apprentice (ROTI): Calculating the Return on Training Investment for Skilled Trades Employers in Canada; A Study of 16 Trades Phase II. Ottawa: Canadian Apprenticeship Forum, 2009.

CLFDB. 1995. Equity in Apprenticeship. Ottawa: Canadian Labour Force Development Board, National Apprenticeship Committee.

Canadian Home Builders’ Association. (2000). Human Resources in the Residential Construction Industry. Ottawa: Canadian Home Builders’ Association.

Carpenter, Dick. 2012. Testing the utility of licensing: Evidence from a field experiment on occupational regulation. Journal of Applied Business and Economics. 13(2): 28 – 41.

Carpenter, Dick, Lisa Knepper, Angela Erickson and John Ross. 2012. License to Work: A National Study of Burdens from Occupational Licensing. Arlington, VA: Institute for Justice.

Carroll, S. and R. Gaston.1981. Occupational restrictions and the quality of service received. Southern Economic Journal. 47(4): 959-976.

Cathless, A., D. Harrington and K. Krynski. 2010. The gender gap in funeral directors: Burying women with ready-to-embalm laws. British Journal of Industrial Relations. 48(4): 688-705.

Day, Kathleen and Stanley Winer 2012. Interregional Migration and Public Policy in Canada. McGill-Queens University Press.

Dorsey, Stuart. 1980. The occupational licensing queue." Journal of Human Resources. 15(3): 424-434.

Dymond, William (Chair). 1973. Training for Ontario’s Future. Task Force on Industrial Training. Toronto: Queen’s Printer.

Empey, Bill. “Delays, Not Withdrawals: A New Perspective on the Path Through Apprenticeship,” Canadian Apprenticeship Journal. 3 (Fall 2010) 1-8.

Esses, Victoria, Joerg Dietz, and Arjun Bhardwaj. 2006. The role of prejudice in the discounting of immigrant skills. In Cultural Psychology of Immigrants. Edited by R. Mahalingam. Mahway, NJ: Lawrence Erlbaum, pp. 113-130.

Esses, Victoria, Joerg Dietz, Caroline Bennett-Abuayyash and Chetan Joshi. 2006. Prejudice in the workplace: the role of bias against visible minorities in the devaluation of immigrants foreign-acquired qualifications and credentials. Canadian Issues. (Spring) 114-118.

Federman, M.N., Harrington, D. E., and Krynski, J.K. 2006. The impact of state licensing regulations on low-skilled immigrants: The case of Vietnamese manicurists. American Economic Review, 96(2): 237-241.

Freeman, Richard. 1975. Legal ‘cobwebs’: a recursive model of the market for new lawyers. Review of Economics and Statistics 57: 171-179.

Freeman, R. 1980. Employment opportunities in the doctorate manpower market. Industrial and Labor Relations Review 33: 185-97.

Gera, S. and T. Songsakul. 2005. How is Canada Faring in the Competition for Internationally Mobile Skilled Workers? Skills Research Initiative Working Paper 2005 D-06. Ottawa: Industry Canada.

Girard, M. and M. Smith. 2013. Working in a regulated occupation in Canada: An immigrant - native-born comparison. Journal of International Migration and Integration. 14:2 (May) 219-244.

Gittleman, M and M. Kleiner. 2013. Wage effects of unionization and occupational licensing coverage in the United States. NBER Working Paper No. 19061

Goldhaber, D and D. Brewer. 2000. Does teacher certification matter? High school teacher certification status and student achievement. Education Evaluation and Policy Analysis. 22(2): 129-145.

Grant P.R. and S. Nadin S. 2007. The credentialing problems of foreign trained personnel from Asia and Africa intending to make their home in Canada: A social psychological perspective. Migration and Integration. 8: 141-162.

Gunderson, Morley. 2002. Rethinking Productivity from a Workplace Perspective. Ottawa: Canadian Policy Research Network, 2002.

Hatfield, Michael. 2004. Vulnerability to persistent low income. Horizons. 7 (December) 19-26.

Hofferth, Sandra and Duncan Chaplin. 1998. State regulations and childcare choice. Population Research and Policy Review. 17(2): 111-140.

Holen, Arlene. 1965. Effects of professional licensing arrangements on interstate labour mobility and resource allocation. Journal of Political Economy. 73: 492-498.

Hotz, Joseph and Mo Xiao. 2011. The impact of regulations on the supply and quality of childcare in childcare markets. American Economic Review. 101(5) 1775-1805.

Immigration Legislative Review Committee. 1998. Not Just Numbers: A Canadian Framework for Future Immigration. Ottawa: Citizenship and Immigration Canada.

Kaiser, Gordon. 1978. Federal competition law and the professions. In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 46-60.

Kleiner, Morris. 2000. Occupational licensing. Journal of Economic Perspectives.14(4): 189-202.

Kleiner, Morris. 2006. Licencing Occupations: Ensuring Quality or Restricting Competition? Kalamozoo, MI.: Upjohn Institute for Employment Research.

Kleiner, Morris. 2013. Stages of Occupational Regulation: Analysis of Case Studies. Kalamozoo, MI.: Upjohn Institute for Employment Research,

Kleiner, Morris. 2015. Reforming Occupational Licensing Policies. The Hamilton Project. Washington, D.C.: Brookings Institution,

Kleiner, M., R. Gay and K. Greene. 1982. Barriers to labour migration: the case of occupational licensing. Industrial Relations. 21: 383-391.

Kleiner, M. and A. Krueger. 2010. The prevalence and effects of occupational licensing. British Journal of Industrial Relations. 48(4): 676-687.

Kleiner, M. and A. Krueger. 2013. Analysing the extent and influence of occupational licensing on the labor market. Journal of Labor Economics. 31(2, part 2): S173-S202.

Kleiner, M. and R. Kudrle. 2000. Does regulation affect economic outcomes? The case of dentistry. Journal of Law and Economics. 43(2): 547-582.

Kleiner, Morris and Kyoung Park. 2010. Occupational Licensing and Injuries and Death in Construction: An Analysis of Electricians and Plumbers. Centre for Construction Research and Training.

Koumenta, M., Humphris, A., Kleiner, M. and Pagliero, M. 2014. Occupational Regulation in the UK and EU: Prevalence and Labour Market Impact. UK Department for Business, Innovation and Skills, Final Report.

Kunin (Roslyn) and Associates. 2002. Assessment of Training Costs for Machinists, Auto Mechanics and Plumbers Engaged in Apprenticeship Training. Ottawa: Human Resources Development Canada, Policy and Apprenticeship Division, 2002.

Lieberman, Jethro. 1978. Some reflections on self-regulation. In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 89-197.

Lowenberg, Anton and Thomas Tinnin. 1992. Professinal versus consumer interests in regulation: the case of the US childcare industry. Applied Economics. 24(6) 571-580.

Marks, Mindy and Marc Law. 2013. From certification to licensure: Evidence from registered nurses and practical nurses in the United States, 1950-1970. European Journal of Comparative Economics. 10(2) 177-198.

Marquart, Richard. 1998. Labour Market Policies and Programmes Affecting Youth in Canada. Paris: OECD Thematic Paper.

Maurizi, A. 1974. Occupational licensing and the public interest. Journal of Political Economy. 82(2): 399-413.

Muzondo, T. R., and B. Pazderka. 1980. Occupational licensing and professional incomes in Canada. Canadian Journal of Economics 13(4) 659–67.

Nova Scotia Department of Finance. (1997). The Underground Economy in Residential Construction. Halifax: Nova Scotia Department of Finance.

O’ Grady, J. and G. Lampert. (1998). The Underground Economy in Ontario’s Construction Industry. ARA Consulting Group for the Ontario Construction Secretariat.
Ostry, Sylvia. 1978. Competition policy and the self-regulating professions. In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 17-29.
Pashigan, P. 1979. Occupational licensing and inter-state mobility of professionals. Journal of Law and Economics. 22: 1-25.

Pashigan, P. 1980. Has occupational licensing reduced geographic mobility and raised earnings? In Occupational Licensure and Regulation. Edited by S. Rottenberg. Washington, D. C.: American Enterprise Institute.

Perloff, Jeffrey. 1980. The impact of licensing laws on wage changes in the construction industry. Journal of Law and Economics. 23(2): 409-428.

Phelan. 1974. Regulation of the Television Repair Industry in Louisiana and California. Washington, D.C.: Federal Trade Commission.

Powell, B. and E. Vorotnikov. 2012. Real estate continuing education: Rent seeking or improvement in service quality? Eastern Economic Journal. 38(1): 57-73.

Prasil, Sandrine. 2005. Registered Apprentices: The Class of 1992, A Decade Later. Ottawa: Statistics Canada, No. 81-595 MIE, No. 035.

Price Waterhouse. 1998. Foreign Academic Credential Assessment Services Business Assessment, Final Report. Ottawa: Ministry of Culture Citizenship and Immigration.

Reitz, Jeffrey. 2001. Immigrant skill utilization in the Canadian labour market: implications of human capital research. Journal of International Migration and Integration 2: 347- 78.

Scarbek, David. 2008. Occupational licensing and asymmetric information: post hurricane evidence from Florida. Cato Journal. 28(1): 73-82.

Schellenberg, G. and H. Maheux. 2007. Immigrants’ perspectives on their first four years in Canada. Canadian Social Trends. Ottawa: Statistics Canada.

Shapiro, Carl. 1986. Investment, moral hazard and occupational licensing. Review of Economic Studies. 53(5): 843-862.

Sharpe, Andrew and James Gibson. 2005. The Apprenticeship System in Canada: Trends and Issues, Ottawa: HRSDC-IC-SSHRC Skills Research Initiative.

Stoll, Paul and Alison Baignee. 1997. The National Apprenticed Trades Survey: An Overview of the Apprenticeship Experience. Canada: Human Resources Development Canada: Standards, Planning and Analysis.

Sweet, Robert. 2003. Women and apprenticeships: The role of personal agency in transition success,” In Integrating School and Workplace Learning in Canada. Edited by Hans Schuetze and Robert Sweet. Montreal: McGill-Queen’s University Press.

Sweet, R. and P. Gallagher. 1997. Women and Apprenticeships: An Analysis of the 1994 National Apprentice Trade Survey. Ottawa: Human Resources Development Canada.
Thorton, R. and E. Timmons. 2013. Licensing one of the world’s oldest professions: massage therapists. Journal of Law and Economics. 56(2): 371-388.

Timmons, E. and R. Thornton. 2008. The effect of licensing on the wages of radiologic technologists. Journal of Labor Research. 29 (4): 333-346.

Timmons, E. and R. Thornton. 2010. The licensing of barbers in the USA. British Journal of Industrial Relations. 48(4): 740-757.

Trebilcock, Michael. 1978. The professions and public policy. In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 3-16.

Tuohy, Carolyn and Alan Wolfson. 1978. Self-regulation: who qualifies? In The Professions and Public Policy. Edited by Philip Slayton and Michael Trebilcock. Toronto: University of Toronto Press, pp. 111-122.

Rafael Gomez is an associate professor of employment relations at the University of Toronto. He holds a cross-appointment at Woodsworth College and the Centre for Industrial Relations and Human Resources. He received a BA in economics and political science from Glendon College (York University) and an MA in economics and a PhD in industrial relations from the University of Toronto. His previous appointments include the London School of Economics as a senior lecturer in management and Glendon College as Chair of the Business Economic department. He has been invited to conduct research and lecture at universities around the world, including in Madrid, Moscow, Munich, Beijing and Zurich. In 2005 he was awarded the Labor and Employment Relations Association’ s John T. Dunlop Outstanding Scholar Award for exceptional contributions to international and comparative labour and employment research. In 2013-14 his book The Little Black Book for Managers was a UK business bestseller and in 2015 his book Small Business and the City will be published by U of T/Rotman press.

CURRICULUM VITAE

RAFAEL GOMEZ

PERSONAL
Address (H): 90 Southilll Drive, Don Mills, ON, M7H 3A8
Address (O): Centre for Industrial Relations and Human Resources, University of Toronto
121 St.George, Toronto ON M5S 2E8
Tel/e-mail: (H) +1.416.939.9216 / (O) +1.416.978.5419 / ralph.gomez@utoronto.ca
Nationality: Canadian
Languages: Fluent in French and Spanish.

EDUCATION
2000
PhD. Industrial Relations
University of Toronto, Centre for Industrial Relations
1997
M.A. Industrial Relations
University of Toronto, Centre for Industrial Relations
1996
M.A. Economics
University of Toronto, Department of Economics
1995
B.A. Economics and Political Science
York University, Glendon College

Doctoral Thesis
“The Effect of Social Capital, Salary Compression and Equity on Individual and Organisational Performance.” Professors Morley Gunderson and Noah Meltz (co-supervisors). Robert Drago (external).

ACADEMIC EMPLOYMENT
Current Academic Post
Associate Professor, University of Toronto, Centre for Industrial Relations and Human Resources & Woodsworth College (Present appointment begun January 2009)

Previous Academic Posts
London School of Economics & Political Science (LSE), Department of Management, Employment Relations and Organization Behaviour (EROB) Group
York University, Department of Economics, Glendon College
London School of Economics (LSE), Interdisciplinary Institute of Management
London School of Economics (LSE), Department of Industrial Relations
Chief Examiner, University of London, External Degree Program (Marketing)
Visiting Professor, Institute for Strategy, Technology and Organizations (ISTO), University of Munich
Senior Research Fellow, Centre for International Governance Innovation (CIGI)
Visiting Professor, University of Zurich (Institute for Strategy and Business Economics)
Visiting Professor, Moscow State University (Graduate School of Business Administration)
Visiting Research Fellow, Banco de Espana (Central Bank of Spain).

Administrative Posts and Duties
CIRHR/Woodsworth College ER-MIRHR Program Merger Planning (U of T, 2012-2013); CIRHR Curriculum Renewal Committee (U of T, 2012); Graduate Admissions Committee, CIRHR (U of T 2010); Woodsworth College Council (U of T); Sefton Award and Lecture Committee (Woodsworth/CIRHR U of T); Steering committee for new management department (LSE); Tenure & Promotion Committee – Teaching File (Woodsworth College)

TEACHING EXPERIENCE
Courses Taught (All courses designed by candidate unless otherwise specified)

Doctoral
1. PhD Seminar in Industrial Relations and Human Resources (CIRHR)
2. Qualitative Research Methods (Rotman-Henley DBA Program)
3. Quantitative Research Methods (Rotman-Henley DBA Program)

Masters
4. Research Methods: Quantitative and Qualitative Analysis (Masters Level); [Adapted course outline]
5. Economics and Public Policy (Masters Level);
6. Human Resource Management (Masters Level); [Minor responsibility for design of course]
7. Foundations of the Employment Relationship (Masters Level);
8. Labour Market Analysis (Masters Level);
9. Comparative Industrial Relations (Masters Level).
10. Marketing and Consumer Economics (Masters and Undergraduate Level);
11. Organizations, Incentives and Employment (Senior Undergraduate and Graduate Level).
12. Masters of Information Guest Lectures (U of T, Faculty of Information)

Bachelors
13. Labour Relations (Undergraduate Level); [Adapted course outline]
14. Compensation (Undergraduate Level);
15. Industrial Organization (Undergraduate Level);
16. Introductory Macroeconomics (Undergraduate Level in French and English);
17. Introductory Microeconomics (Undergraduate Level in French and English);
18. Foundations of Management (Undergraduate and Masters Level);
19. Labour Economics II (Undergraduate Level)
20. Introduction to Employment Relations (Undergraduate Level)
21. Employment Health and Well-being (Undergraduate Level)

Doctoral and Graduate Supervision
Umar Boodoo (PhD Candidate, CIRHR U of T). Principal Supervisor 2013 - present
Tingting Zhang (PhD Candidate, CIRHR U of T). Principal Supervisor 2014 - present
Sophie Lee (PhD LSE) ““Corporate Governance and Executive Pay: An Integrative Approach”” July 2013. [External Reviewer]
Roongkiat Ratanabanchuen (PhD LSE) ““Demographic Transition, pension Schemes Investment and the Financial Market” August 2013 [External Reviewer]
Neil McEvoy (DBA, Henley College (UK); Rotman) “Transformations in Healthcare” (Thesis Co-Supervisor)
Qian (Lydia) He (PhD, U of T) “Three Essays on Disadvantaged Groups in the Labour Market” 2009-2013. [PhD Committee Member]
Chika Oka (PhD Candidate, LSE), “Three Essays on Labour Standard Compliance: The Case of Cambodian Garment Industry”, September 2006-March 2010. [PhD Co-Supervisor]. Winner of the 2010 LERA best dissertation].
Kartik Kumaramangalam (PhD LSE), “Three Essays on the Value of Public-Private Partnerships in Biotechnology”, September 2002-December 2006. [PhD Co-Supervisor]
Caroline Agnew (M.A. York University), “Artists Run Organization and Community Development”, September 2008-2010. [MA Thesis Co-supervisor]
Taha Ashfar (PhD LSE), “Corporate Philanthropy in the US and UK.” March 2012 [External Reviewer]
Dominic H. Chai (PhD LSE), “Three Essays on Foreign Corporate Ownership.” November 2009 [External Reviewer]
Lin Xiu (PhD, CIRHR, U of T) “Three Essays on Employment and Compensation in China” January 2009-2010 [Committee Member]
Amy Linden (PhD Candidate, CIRHR, U of T) “Age Discrimination and the Labour Market” January 2010-present

Outreach/Service Education
City of Toronto “Cultural Hotspot Project”, May to December 2014
Institute for Canadian Citizenship, Roundtable Discussant, Ontario Science Centre April 29th, 2013.
Youth Justice Services, Ministry of Children and Youth Services, Government of Ontario (June, 2009): Delivered a one-day educational program on socio-economic conditions in east-end Toronto for Youth Justice Services staff.
London School of Economics (LSE) - Community Outreach Lecture Series (2006-2007): Delivered several invited guest lecturers to high school-aged students from disadvantaged neighbourhoods in London (UK).
Georgian Triangle Lifelong Institute (GITLI): Delivered April-May 2006 five lectures to the community of adult learners/retirees on the new advances in consumer behaviour and behavioural economics.

Executive Education
1. iSolon/Fugro – Management and Leadership Seminars – (Kuala Lumpur, Malaysia; Houston, US)
2. Enterprise LSE – Consumer Behaviour Analysis Slovenian MBA Trade Mission – (London, UK)
3. MSU Graduate School of Business – Industrial Relations: A Primer for Managers – (Moscow, RU)
4. Enterprise LSE – European Employer-Employee Chemical Association – Industry Overview and Social
Dialogue (Lisbon, Portugal, Wiesbaden Germany, London, UK)
5. Enterprise LSE – China Telecom Senior Executives –International Marketing /HRM (London, UK)
6. Indian Institute of Planning and Management – India and the Global Talent Crunch (Zurich, CHZ)
7. University of Zurich – International MBA Program – Global Marketing (Zurich, CHZ)
8. Groupe Desjardins – Demographic Market Analysis (Glendon College, York University)
9. Enterprise LSE – Citibank Private Banking Strategic Management Training (London, UK)
10. U of T Rotman/Henley College – DBA program teaching Qualitative Research Methods (Toronto, ON)
11. Osgoode Certificate in Labour Law - Osgoode Professional Development Centre (Toronto, ON)
12. Entreprise LSE – Diverse Cities and Economic Success – Spanish Civil Service (London, UK)
13. Munk School of Global Affairs – HRM in the Public Sector – Senior Chinese Civil Servants (Toronto, ON)

ACADEMIC AWARDS AND HONOURS
1. The 2005 John T. Dunlop Outstanding Scholar Award for Exceptional Contributions to International and
Comparative Labour and Employment Research – LERA (2006)
2. McGraw–Hill Best Paper Award in Business Economics, Global Conference on Business and
Economics, Oxford (UK) (with David Foot) – (2005)
3. Honourable Mention Award for the Best Ph.D. Dissertation – IRRA (2001)
4. Emerging Scholars Award – American Compensation Association (1998)
5. Connaught Scholarship – University of Toronto (1997)
6. Open Fellowship – University of Toronto (1996)
7. Book Prize in Economics – York University (1995)

RESEARCH PUBLICATIONS
(a) Refereed Journal Publications (Articles published with authors in alphabetical order unless otherwise indicated)
1. “What Accounts for the Union Member Advantage in Voter Turnout? Evidence from the European Union, 2002-2008” Relations industrielles / Industrial Relations, Volume 69, Number 4, Fall 2014, p. 732-765. With Bryson, Willman and Kretschmer.
2. “Relative income, absolute income and the life satisfaction of older adults: do retirees differ from the non-retired?”. (2014) Industrial Relations Journal, 45: 281–299. doi: 10.1111/irj.12052. with Boodoo, U. M. and Gunderson, M
3. “Workplace Voice and Civic Engagement: What Theory and Data Tell Us About Unions and Their Relationship to the Democratic Process” (2013) Osgoode Hall Law Journal, Volume 50, Number 4: 965-998. W/t Alex Bryson, Tobias Kretschmer and Paul Willman
4. “Demographic Origins of the Great Recession: Implications for China” (2013). China & World Economy. Volume 21, Issue 2, pages 97–118, With Danielle Lamb.
5. “Managerial Hostility and Attitudes Towards Unions: A Canada-US Comparison” (2013) Journal of Labor Research. Volume 34, Issue 1, March 2013. Pp.99-119. With M Campolieti and M Gunderson
6. "Does Non-Union Employee Representation Act as a Complement or Substitute to Union Voice? Evidence from Canada and the United States "(2013). Industrial Relations (Berkeley). Volume 52, s1, pages 378–396 .With Michele Campolieti and Morley Gunderson.
7. “The Comparative Advantage of Non-Union Voice in Britain, 1980-2004:” (2013). Industrial Relations (Berkeley). Volume 52, s1, pages 194–220. With Alex Bryson, Paul Willman, and Toby Kretschmer.
8. “Labour Adjustment Implications of Service Offshoring: Evidence from Canada” (2013), British Journal of Industrial Relations. Volume 51, Issue 1, pages 148–173. With Morley Gunderson and Rene Morissette.
9. “For Whom the ‘Retirement’ Bell Tolls: Inter-temporal Comparisons Using the 1994 and 2002 Canadian GSS.” (2011) Canadian Public Policy. 37(4): 513-539. With Morley Gunderson.
10. “What Accounts for the Representation Gap? Decomposing Canada—US Differences in the Desire for Collective Voice.”( 2011) Journal of Industrial Relations 53(3): 425-449. With Michele Campolieti, Rafael Gomez, and Morley Gunderson.
11. “Heterogeneous Worker Ability and Team–Based Production: Evidence from Major League Baseball, 1920-2009.” (2011) Labour Economics. Vol.18 (3): 310-319. Alex Bryson and Kerry Papps.
12. “When Public Salaries Become Public Knowledge: Academic Salaries and Ontario’s Public Salary Disclosure Act” (2010): Canadian Public Administration Journal. 53 (1): 107-126. W/t Steven Wald.
13. “Online Social Networking and Trade Union Membership: What the Facebook Phenomenon Truly Means For Labour Organizers” (2010) Labor History. 51(1): 41-53. w/t A.Bryson and P. Willman.
14. “Volunteering, Income Support Programs and Persons with Disabilities” Industrial Relations/Relations Industrielles. Vol. 64, No. 2 (2009) 189-208. w/t Michele Campolieti and Morley Gunderson.
15. “The Importance of Being Mature: The Effect of Demographic Ageing on Global Per-Capita GDP.” Journal of Population Economics, Vol. 21 No.3 (Winter 2008) 589–608. w/t Pablo Hernandez de Cos.
16. “Does Population Ageing Promote Faster Economic Growth?” Review of Income and Wealth, Vol. 54, No.3 (September, 2008) 350-372. w/t Pablo Hernandez de Cos.
17. “The Diffusion of Workplace Voice and High-Commitment Human Resource Management Practices in Britain, 1984-1998.” Industrial and Corporate Change, Vol. 16, No.3 (Fall, 2007) 395-426. Alex Bryson, Tobias Kretschmer and Paul Willman.
18. “The Long Goodbye: The Rise and Fall of Representative Voice in Britain.” International Journal of Human Resource Management, Vol. 18, No.7 (2007) 1318-1334. Alex Bryson, Paul Willman and Rafael Gomez.
19. “The Sound of Silence: Why Do Some Employers Fail to Offer Employee Voice?” Socio-Economic Review, Vol. 4, No. 2 (2006) 8-24. Alex Bryson, Rafael Gomez and Paul Willman.
20. “Voice at Work…What Do Employers Want?” Socio-Economic Review, Vol.4, No.2 (2006) 1-7. Alex Bryson, Rafael Gomez and Paul Willman.
21. “Non-Standard and Vulnerable Workers: A Case of Mistaken Identity?” Canadian Labour and Employment Law Journal, Vol. 12, No. 2 (2005) 267-283. Rafael Gomez and M. Gunderson.
22. “Why Have Workers Stopped Joining Unions?” British Journal of Industrial Relations, Vol.43, No. 1 (March, 2005) 67-92. Alex Bryson and Rafael Gomez.
23. “Youth-Adult Differences in the Demand for Unionisation: Are American, British and Canadian Workers All That Different?” Journal of Labor Research, Vol 26, No.1 (Winter, 2005) 155-167. Alex Bryson, Rafael Gomez, Noah Meltz and Morley Gunderson.
24. “The Two-Way Interaction Between Globalisation and Labour Market Polices.” Oxford Development Studies, Vol.32, No.1 (2004)135-152. Andrew Downes, Rafael Gomez and Morley Gunderson.
25. “Age Structure, Income Distribution and Economic Growth.” Canadian Public Policy, Vol. 29 (January, 2003) S142-S161. Rafael Gomez and David K. Foot.
26. “Volunteer Activity and the Demands of Work and Family.” Industrial Relations/Relations Industrielles ,Vol. 58, No. 4 (December, 2003) 1-12. Rafael Gomez and Morley Gunderson.
27. “Comparing Youth and Adult Desire for Unionization in Canada.” British Journal of Industrial Relations, Vol. 40, No.3 (September, 2002) 521-542. Morley Gunderson and Noah Meltz.
28. “Mandatory Retirement Legislation: A Constraint on Transitions to Retirement?” Employee Relations, Vol. 24, No.4 (September, 2002) 403-422. Rafael Gomez, Morley Gunderson and Andrew Luchak.
29. "Salary Compression and Team Performance: Evidence from the National Hockey League." Zeitschrift Fur Betriebswirtschaft, Vol.4,No.4 (January 2002) 203-220.
30. “Membership Has Its Privileges: Social Capital, Neighbourhood Characteristics and the Earnings of Micro-finance Borrowers” The Canadian Journal of Economics, Vol.34, No.4 (November, 2001) 943-966. Rafael Gomez and Eric Santor.

(b) Papers in Proceedings and Policy Journals (All articles published with authors in alphabetical order)
1. “The Destiny of Demographic Change”. 2013. Policy Options/Options Politiques. IRPP. Vol 34:4, 55-57. w/t David Foot.
2. “Corporate Social Responsibility and Greater Worker Protection: Two sides of the Same Coin?” (2012). Beyond Borders: Governance of Work in a Global Economy: Proceedings of the 16th ILERA World Congress. http://ilera2012.wharton.upenn.edu/ . With Anil Verma.
3. “Team performance and the optimal spread of talent” (2011). CentrePiece Magazine (LSE) 16 (1) Summer 2011: 22-24. With Alex Bryson and Kerry Papps.
4. “Labour Adjustment Implications of Offshoring of Business Services.” (January, 2010). In Offshore Outsourcing: Capitalizing on Lessons Learned: Conference Proceedings. The Rotman School of Management and Industry Canada. Daniel Treffler (ed). Rafael Gomez and Morley Gunderson. http://www.rotman.utoronto.ca/offshoring/
5. “Business Incentives in the Crisis Context” (2010) Journal of the Moscow State University: Series “Management “ Vol 24: 2, 23-30. (in Russian: “Vestnik Moskovskogo Universiteta. Seriaya XXIV. Management”, ISSN 0201-7385, ISSN 2075-5996). With Anil Verma
6. “Les relations avec les employés se déroulent-elles dans un vacuum? Des constats récents sur la responsabilité sociale des entreprises et les relations avec les employés au Canada” (2010) Regards croisés sur les mutations du travail. Sous la direction de Paul-André Lapointe, Julien Pelletier et François Vaudreuil. Les Presses de L’Universite de Laval. P.51-62. ISBN : 978-2-7637-9120-3. W/t Anil Verma.
7. "Causas y consecuencias de participación en actividades de voluntariado: Una perspectiva canadiense." Revista de Economia Social. Nº 46, (febrero de 2008) 1-8 ISSN 1137-4748.M Gunderson
8. “From the Two faces of Unionism to the Facebook Society: Union Voice in a 21st Century Context.” Labor and Employment Relations Association Series, Proceedings of the 60th Annual Meeting, 51-60. (October, 2008) 51-60, Alex Bryson, Rafael Gomez and Paul Willman.
9. “Does the Microfinance Lending Model Actually Work?” Whitehead Journal of Diplomacy and International Relations. Volume IX, No. 2 ( 2008) 37-56. w/tEric Santor.

10. "Religiosity and Unionisation: A Cross-Country Comparison." (October, 2002) 127-135. Papers and Proceedings 38th Annual CIRA Congress: Rethinking Institutions for Work and Employment. Rafael Gomez, Seymour Martin Lipset and Noah Meltz.
11. “The Supply and Demand of Unionisation Revisited: Evidence from the U.S. and Canada” 53rd Annual Proceedings of the IRRA, (October, 2001) 163-172. Rafael Gomez, Seymour Martin Lipset and Noah Meltz.

(c) Books (Books and volumes published with authors in alphabetical order unless otherwise indicated)
1. Small Business and the City: The Transformative Potential of Small Scale Entrepreneurs. (April 2015). Toronto: Rotman/UofT Press. With Matt Semansky and Andre Isakov.
2. The Little Black Book for Managers: Maximizing Your Key Moments of Power as a Manager. (2013). Chichester: Capstone-Wiley Press. W/t John Cross and Kevin Money
3. The Paradox of American Unionism. (2004) Ithaca: Cornell University Press. Seymour Martin Lipset, Noah Meltz, Rafael Gomez and Ivan Katchonovski.

(d) Edited Volumes and Educational Publications
1. China and the Long March to Global Trade: The Accession of China to the WTO, (2002) London: Routledge. Alan Alexandroff, Sylvia Ostry and Rafael Gomez (eds).
2. Principles of Marketing: A Subject Guide (2005). London: University of London. Rafael Gomez and Haider Ali.

(e) Chapters in Books (Chapters published with authors in alphabetical order unless otherwise indicated)
1. “Labour Market Policies in the Provinces” Canadian Provincial Politics, 3rd Edition, Edited by Chris Dunn, University of Toronto Press (Forthcoming, 2015). Morley Gunderson.
2. “Employee Voice and the Transaction Cost Economics Project.” The Handbook of Research on Employee Voice . Adrian Wilkinson, Jimmy Donaghey , Tony Dundon and Richard Freeman (eds). New York: Edward Elgar Press. (2014). Paul Willman, Tobias Kretschmer and Alex Bryson.
3. “Does Employee Relations Occur in a Vacuum? Recent Evidence on Corporate Social Responsibility and Employee Relations in Canada.” Different Perspectives on Work Changes. (2011). Edited by Paul-André Lapointe, Julien Pelletier et François Vaudreuil. Les Presses de L’Université de Laval. P.53-65. w/t A.Verma.
4. “Mandatory Retirement: Myths, Myths and More Darn Myths.” (2010). In Retirement Policy Issues in Canada Michael G. Abbott, Charles M. Beach, Robin W. Boadway, and James G. MacKinnon (eds). McGill-Queen’s University Press. R.Gomez & M.Gunderson.
5. “Voice at the Workplace: Where do we find it, why is it there and where is it going?” (2010). In The Evolution of the Modern Workplace: A Quarter Century of Change in British Employment Relations, Alex Bryson and John Forth (eds). Cambridge University Press. Willman, and Bryson.
6. “Voice in the Wilderness: The Shift From Union to Non‐Union Voice in Britain.” (2010). In The Oxford Handbook of Participation in Organizations, Edited by Adrian Wilkinson, Paul J. Gollan, Mick Marchington and David Lewin (eds), Paul Willman, Rafael Gomez and Alex Bryson.
7. “Disabled Persons and Non-Standard Work.” (2009).In Essays on Economics, Disability and Employment. Madrid: Delta Publicaciones. Pablo Alonso Gonzalez, Jose Javier Nunez Velazquez, and Marta Pascual Saez (eds). Michele Campolieti, Rafael Gomez and Morley Gunderson.
8. “Creation of Values and Principles: Canada’s Experience with the CUSFTA and NAFTA.” In The Politics of Trade: The Role of Research in Trade Policy and Negotiation. Diana Tussie (ed), Amsterdam: Brill Publishing. (2009). Rafael Gomez and Morley Gunderson
9. “Have Young Workers Lost Their (Collective) Voice?” (2008). In Youth Employment in the Global Economy, Greg Defreitas (ed). Michele Campolieti, Rafael Gomez and Morley Gunderson.
10. “The Social, Political and Economic Labour Relations Environment.” (2009). In Union Management Relations in Canada. Morley Gunderson and Daphne Taras (eds). Toronto: Pearson Education. Frank Reid and Rafael Gomez.
11. “Say What? Employee Voice in Canada.” (2007). In What Workers Say: Voice and Voicelessness in the Anglo-Saxon World,. Ithaca: Cornell University Press. Richard Freeman, Peter Boxall, and Peter Hayes (eds). Mike Campolieti, Rafael Gomez and Morley Gunderson.
12. “Does Economic Convergence Lead to Social Policy Convergence? An Analysis of North American and International Linkages.” (2005). In Social and Labour Market Aspects of North American Economic Integration, Richard Harris and Thomas Lemieux (eds). Rafael Gomez and Morley Gunderson.
13. “From Playstations to Workstations: Young Workers and the Experience-Good Model of Trade Union Membership” (2004). In Unions in The 21st Century, London: Palgrave. Thomas Kochan and Anil Verma (eds). Rafael Gomez and Morley Gunderson.
14. “Nice Guys Can Finish First: Balancing Competing Interests as an Industrial Relations Paradigm.” (2004). In Theoretical Perspectives on Work and the Employment Relationship. Industrial Relations Research Volume. Bruce Kaufman (ed). John Budd, Rafael Gomez and Noah Meltz.
15. “The End of the Affair? Employers and Trade Unions in Britain,” (2004). In Union Organization and Activity in Britain (Routledge Series Volume 2). John Kelly and Paul Willman (eds). With Paul Willman, Alex Bryson and Rafael Gomez.
16. “The Social, Political and Economic Labour Relations Environment,” (2004). In Union Management Relations in Canada. Morley Gunderson Allen Ponak and Daphne Taras (eds). Toronto: Pearson Education. Frank Reid, Noah Meltz and Rafael Gomez.
17. “The Experience-Good Model of Union Membership,” (2004). In The Changing Role of Unions: New Forms of Representation. Phanindra V. Wunnava (ed). M.E. Sharpe. Rafael Gomez and Morley Gunderson.
18. “Buying Into Union Membership: Unionisation as an Experience Good in Britain, Canada and the US,” (2003). In Representing Workers: Recognition and Trade Union Membership in Britain (Routledge Series Volume 1) H. Gospel and S. Wood (eds). Alex Bryson and Rafael Gomez.
19. “Multilateral Worker Protection in an Era of Footloose Capital,” (2002). In Human Resource Development and Workplace Governance in the Caribbean. N. Cowell and C. Branche (eds).
20. “Marching on Together? Recent Trends in Union Membership,” (2002). In British Social Attitudes: The 19th Report, Park, A., Curtice, J., Thomson, K., Jarvis, L. and Bromley, C. (eds) London: Sage. Alex Bryson and Rafael Gomez.
21. “The Integration of Labour Markets in North America,” (2002). In Capacity for Choice: North American Economic and Social Integration. George Hoberg ed., Toronto: University of Toronto Press. Morley Gunderson and Rafael Gomez.
22. “Where do go Frome Here? The Concluding Chapter” China and the Long March to Global Trade: The Accession of China to the WTO, (2002) London: Routledge. Alan Alexandroff, Sylvia Ostry and Rafael Gomez (eds). Alan Alexandroff and Rafael Gomez.
23. “Volunteer Activity Amongst the Unemployed,” (2001). In The Earnings Supplement Project Volume II, Social Research Demonstration Corporation of Canada (SRDC), Saul Schwartz (ed). Morley Gunderson and Rafael Gomez.

(f) Published Monographs
1. “All-Star or Benchwarmer? Relative Age, Cohort Size and Career Success in the NHL”. IZA Discussion Paper No. 8645. Bryson, Alex and Zhang, Tingting.
2. “Union workplace voice and civic engagement”. (2012) NIESR discussion papers, 394. National Institute of Economic and Social Research, London, UK. With Bryson, Kretschmer and Willman.
3. “The Effect of income support programs on Volunteerism among disabled individuals”. Labour Market Matters, CSLRN. Vol 3(6), June 2011. Campolieti , Michele & Gunderson, Morley.
4. “Heterogeneous Worker Ability and Team–Based Production: Evidence from Major League Baseball, 1920-2009” March, 2011. CSLRN Working paper series. No. 75. w/t Alex Bryson, Kerry Papps, and Rafael Gomez.
5. Alex Bryson & Papps, K.L. & Gomez, R., 2010. "Heterogeneous Worker Ability and Team-based Production: Evidence from Major League Baseball, 1920-2009" NIESR Discussion Papers 365.
6. Papps, Kerry L. & Bryson, Alex & Gomez, Rafael, 2010. "Heterogeneous Worker Ability and Team-Based Production: Evidence from Major League Baseball, 1920-2009," IZA Discussion Papers 5225, Institute for the Study of Labor (IZA).
7. Alex Bryson & Rafael Gomez & Kerry L. Papps, 2010. "Heterogeneous Worker Ability and Team-Based Production: Evidence from Major League Baseball, 1920-2009,"CEP Discussion Papers dp1015, Centre for Economic Performance, LSE.
8. “Employee Voice and Private Sector Workplace Outcomes in Britain, 1980-2004,” NIESR Discussion Paper No. 329. (2009). Alex Bryson, Paul Willman, and Toby Kretschmer.
9. "Volunteering, Income Support Programs and Disabled Persons," 2009. CLSRN Working Papers No. 16, UBC Department of Economics, revised 16 Feb 2009. Campolieti and Gunderson 2009.
10. Gomez, Rafael & Gunderson, Morley, 2009. "For Whom the 'Retirement' Bell Tolls: Inter-temporal Comparisons Using the 1994 and 2002 Canadian General Social Survey," CLSRN Working Papers clsrn_admin-2009-31, UBC Department of Economics, revised 22 Apr 2009.
10. Gomez, Rafael & Gunderson, Morley, 2009. "For Whom the 'Retirement' Bell Tolls: Inter-temporal Comparisons Using the 1994 and 2002 Canadian General Social Survey," CLSRN Working Papers clsrn_admin-2009-31, UBC Department of Economics, revised 22 Apr 2009.
11. “Trading Places: Employers, Unions and the Manufacture of Voice,” CEP Discussion Paper No. 0884, (2008). With Alex Bryson and Paul Willman
12. “Employee Voice and Human Resource Management: An Empirical Analysis using British Data:” PSI Research Discussion Paper No. 27. (2008). Bryson, Willman, and Kretschmer.
13. “From the Two faces of Unionism to the Facebook Society: Union Voice in a 21st Century Context.” Manpower Human Resources Lab Discussion Paper No.6, (2008) London: CEP.
14. “The Importance of Being Mature: Demographic maturation and global per-capita GDP.” (August 2006) European Central Bank (ECB) Publication No. 670. Pablo Hernández de Cos,
15. “Population Ageing and Sectoral Growth: The Case of the UK.” International Journal of International Business Economics. (2006). Rafael Gomes and David Foot.
16. “Demographic Maturity and Economic Performance: The Effect of Demographic Transitions on Per Capita GDP Growth.” Central Bank of Spain (Banco de Espana) (2004) Publication No. 0318. Rafael Gomez and Pablo Hernández de Cos.
17. 'Why Do Voice Regimes Differ?' Centre for Economic Performance Discussion Paper No. 591, London School of Economics (2003). Paul Willman, Rafael Gomez, and Alex Bryson.
18. “Why Have Workers Stopped Joining Unions?” Centre for Economic Performance Discussion Paper No.589, London School of Economics (2003). With Alex Bryson.
19. 'Segmentation, Switching Costs and the Demand for Unionization in Britain', Centre for Economic Performance Discussion Paper No. 568 (2002), London School of Economics. With Alex Bryson.
20. “Age structure, income distribution and economic growth” European University Institute Working Paper, E72 NO.2002/36. (2002). With David K. Foot.
21. “Zero Sum Illusion: industrial relations and modern economic approaches to growth and income distribution” European University Institute Working Paper, E72 NO.2002/37. (2002). Rafael Gomez and Noah Meltz.
22. “Social Capital and Local Economic Development,” (1999). LEED Research Paper 4-1999E, Local Economic and Employment Development (LEED) Programme, OECD.

(g) Book Reviews
1. Review of Interregional Migration and Public Policy in Canada (2012) by Kathleen M. Day and Stanley L. Winer. Montreal and Kingston: McGill-Queen’s University Press. 408 pages .In Journal of Regional Science (2012) Vol. 52, No. 5, 2012. 892-893.
2. Review of The Thought of Work by John W. Budd. (2011). Ithaca, NY: Cornell University Press. 264 pages. In Relations industrielles / Industrial Relations (2012) vol. 67, n° 2, p. 331-333
3. Review of the Future of the Internet: And How to Stop it by Jonathan Zittrain Oxford University Press. 2008. In Labor History 51(1):150-152 (April, 2010). With Alex Bryson and Paul Willman
4. Review of Globalization and Labor Conditions: Working Conditions and Worker Rights in a Global Economy by Robert J. Flanagan Oxford University Press. 2006.In Economica (Spring, 2010).
5. Review of Partisanship, Globalization, and Canadian Labour Market Policy: Four Provinces in Comparative Perspective by Rodney Haddow and Thomas Klassen, 2006, University of Toronto Press x/390. In Industrial and labor Relations Review (September, 2007) 589-590.
6. Review of Self-Employed Workers Organize: Law, Policy and Unions by Cynthia Cranford, Judy Fudge, Eric Tucker and Leah Volko. Canadian Public Policy (September, 2006) 339-340.
7. Review of Employment with a Human Face by John Budd. Industrial Relations/Relations Industrielles Vol. 59:2 (April, 2004) 438-439.

8. Review of Labor Standards in the United States and Canada edited by Richard N. Block, Karen Roberts and R. Oliver Clarke. British Journal of Industrial Relations 42:2, (2004) 410-411.

(h) Revise and Resubmit
1. “What do Unions do to CEO Pay?” Submitted to Industrial & Labor Relations Review (Cornell). W/t Konstantinos Tzioumis. (Accepted conditional on final revisions, 2015)
2. “Does Occupational Licensing Pay?: The Case of Immigrants vs Non-Immigrants” Re-submitted to Canadian Public Policy (Jan 2015). W/t Gunderson, Zhang and Huang

(i) Submissions to Journals/Publishers
1. “Senior Management Incentives in the Presence of Envious Agents.” Journal of Law and Economics (University of Chicago). Kostantinos Tzioumis and Rafael Gomez.

(j) Work in Progress
1. “Does Corporate Social Responsibility Act as an ‘Insurance Mechanism’?”
2. “Pay Inequality and Individual Performance: Evidence from the NHL”

3. “A social network analysis of the Canadian union movement”
4. “Union wage premiums in the wake of the Great Recession”

(k) Conference/Symposiums Organized
1. Symposium on Employers and Voice at Work (co-organizer Alex Bryson), Society for the Advancement of Socio-Economics (SASE), Washington, DC, July 9-11, 2004.

(l) Reports to Governments and Non-Governmental Organisations
1. “Computershare’s Global Survey of Employee Ownership: Local Canadian Commentary”. August 2014. http://www.computershare.com/News/LSE%20Press%20Release%20Canada_Oct%201.pdf
2. “Analysis, Diagnostico y Propuestas de mejora del Turismo en Aragon: del Turismo como Riesgo a la oportunidad de un Turismo Sostenible”. A Report produced for the Autonomous Region of Aragon (Spain). March 2011. Co-author team includes principal co-author Maria Victoria Sanagustin Fons and Jose Antonio Mosene Fierro (Universidad de Zaragoza, Spain).
3. “Comparative Study of Labour Legislation Governing Enterprises in the Canadian Horticulture Sector #01B68-10-0919.” Produced for Agriculture Canada (AAFC) Horticulture Value Chain Roundtable (HVCRT) Labour Working Group (LWG) - Government Policies and Regulations, (August, 2011). W/t eMerge Partners Inc,
4. “Ontario Ministry of Labour Dispute Resolution Services Branch: A Satisfaction Survey of Dispute Resolution Services Clients”. Survey administration, data collection and student research guidance. (January-April 2011)
5. “The Local Economic Infrastructure of Business Improvement Areas in the City of Toronto: End of Project Report”. Produced for Infrastructure Canada (INFC), (March, 2010).
6. “Summary Report of the BIA Membership Survey Study” Prepared for Wexford Heights Business Improvement Area, (2009).
7. “Employer Sponsored Pensions and Labour Mobility” Prepared for HRSDC, Research Division (2009). (w/t Morley Gunderson).
8. “Do OAS and GIS Payments Influence The Financial and Social Well-being of Seniors?” Prepared for HRSDC-Industry Canada Pre-Policy Discussion Series, (2009).
9. “The Changing Nature of Work and the Impact on Labour Mobility of Regulated Professionals in Canada”. Prepared for Labour Mobility Division, Skills and Employment Branch
HRSDC (2008). (W/t Juan Gomez and Morley Gunderson).
10. “Virtual Work: A UK and European Perspective” Prepared for 13th International Metropolis Conference Sponsored Study for Labour Market Integration Directorate, HRSDC ( 2008).
11. “The Case for and against Wage Insurance in Canada” Prepared for HRSDC and Industry Canada in Pre-Policy Discussion Series, (April, 2008).
12. “Economic Challenges for European Employer-Employee Chemical Association” A Report Prepared for the EECA (February, 2008).
13. “Globalisation and Labour Market Adjustment: A Symposium Summary” Prepared for HRSDC-IC Roundtable on Globalisation and Labour Adjustment Initiative (September, 2007).
14. “Interprovincial Labour Mobility” (2007). Prepared for HRSDC-IC Roundtable on Internal Trade: Opportunities and Challenges. (w/t M. Gunderson).
15. “Imperfections in the Market for Skilled Workers” (2006) HRSDC – Industry Canada. Prepared for Skills Research Initiative On Adjustment in Markets For Skilled Workers. (w/t M.Gunderson)
16. “Adjustment in Labour Markets Internal and External to the Firm” (2006) HRSDC/Industry Canada. For Skills Research Initiative On Adjustment in Markets For Skilled Workers. (w/t M.Gunderson)
17. “Unions and CEO Pay in America” (2005) Bureau of National Affairs Research Volume. (w/t K.Tzioumis)
18. “Seasonal Workers in Canada: An Analysis Using the 2001 General Social Survey.” An HRSDC-IC-Skills Research Initiative Report, 2005. (w/t M.Gunderson)
19. “Non-Standard Work in Canada: An Analysis Using the 2001 General Social Survey.” An HRSDC-IC-Skills Research Initiative Report, 2005. (w/t M.Gunderson)
20. “The Effect of Workforce Aging On Labour Market Institutions and Workplace Human Resource Practices in Canada.” An HRSDC-IC-Skills Research Initiative Report, 2005. (w/t M.Gunderson)
21. “The Costs and Benefits of Retirement in An Ageing Workforce: An Analysis Using the 2002 General Social Survey” An HRSDC-IC-Skills Research Initiative Report, 2005. (w/t M.Gunderson)
22. “Turnover @ the Top: A solution to executive turnover?” A Report prepared for iSolon Ltd, 2001.
23. “The State of Micro-Credit in Canada” Report to the Department of Finance, Canada (Economic Development Policy Branch). (w/t Susannah Cameron, Craig Churchill and Eric Santor) 1999.
24. “The Role of Social Capital in Local Economic Development.” Report prepared for OECD Local Economic and Employment Development (LEED) Programme, January 1999.
25. “The Determinants of Successful Borrowing” Report for Calmeadow-Metrofund, Dec 1998.

(m) Op-Ed Pieces, Blog Features, Newspaper and Magazine Articles
1. “Will you become an All-Star Athlete? The answer may depend on when you were born.” USAPP Blog, LSE. http://bit.ly/1MpWCXg
2. “Universal Unionism” (September 29th, 2013). Unions21. With Alex Brsyon. http://www.unionhome.org.uk/?p=2842
3. “Strengthening Democracy” (2012) ProgressOnline. Posted November 1 2012. W/t Alex Bryson. http://www.progressonline.org.uk/2012/11/01/strengthening-democracy/
4. “How Unions Could Help Solve the Democratic Deficit” (2012) Unions21. Posted Thursday September 27, 2012. Union Home (UK). w/t Alex Bryson. http://www.unionhome.org.uk/?p=367
5. “Open source unionism: A model for the underrepresented worker?” (June 29th, 2012) in The National Post/Media Planet Insert, p.3.
6. “Ontario’s Youth Unemployment: We Must Step up the Economic Growth Agenda” (September 13, 2011). The Globe and Mail. Online Editorial Section.http://spon.ca/ontario%E2%80%99s-youth-unemployment-we-must-step-up-the-economic-growth-agenda/2011/09/15/
7. “The Disappearing Middle Income Earner and Union Decline”. (September 30th, 2011) in The National Post/Media Planet Insert, p.7. http://www.hsaa.ca/news_files_collection/unionized_labour.pdf
8. “Team performance and the optimal spread of talent” (June 2011). CentrePiece Magazine Vol.16(1): 22-24. With Alex Bryson and Kerry Papps.

(n) Journal Referee
Labour Economics; Public Administration Journal (Brock University); British Journal of Industrial Relations (LSE), Contemporary Economic Policy, Economica (LSE); Canadian Journal of Economics; Human Relations; Industrial and Labor Relations Review (Cornell), Industrial Relations (Berkeley), Oxford University Press (Management), Economic Journal (University of York), Journal of Public Administration (Washington U), European Journal of Industrial Relations (LSE), Industrial Relations/Relations Industrielles (Laval U); Journal of Industrial Relations (Nottingham U; Public Administration Review (Indiana U).

RESEARCH AWARDS, GRANTS AND RECORD OF OUTCOME
2014 SSHRC Partnership Grant “Adapting Canadian Work and Workplaces to Respond to
Climate Change: Canada in International Perspective” (2014-2020) – Co-researcher
2014 IRC Research Grant “What's the Problem At Work? Taking the Pulse of Managers and Workers to Chart a Future for Employment Relations Policy and Practice” Co-researcher
2014 ARC Research Grant “What's the Problem At Work? Taking the Pulse of Managers and Workers to Chart a Future for Employment Relations Policy and Practice” Co-researcher
2014 SSHRC Insight Grant “Corporate Social Responsibility, Supply Chain Compliance and Positive Employee Relations” Recommended for funding (No funding available).
2013 CLMR Grant “The union Wage Premium in the Shadow of the Great Recession” (12 months – 7k shared w/t D. Lamb)
2013 SSHRC Insight Grant “What's the Problem At Work? Taking the Pulse of Managers and Workers to Chart a Future for Employment Relations Policy and Practice” Recommended for funding (No funding available).
2011 Lee-Chin Institute Grant “ Why Do Firms Invest in CSR?”. W/t Anil Verma.
2007 Infrastructure Canada Grant “The Local Economic and Social Infrastructure of Business Improvement Areas in Canada” (2.5 yrs - $124k). Book and various outreach activities.
2006 CSLRN Grant on “Disability and Volunteer Work in Canada”. Completed draft and published in 2009. See refereed publications entry no.1.$20k shared w/t co-author)
2006 CSLRN Grant on “Decomposing Changes in Expected Age of Retirement in Canada”. Completed draft in 2007. ($20k shared w/t co-author)
2004 HRDC funding for “The Effects of Workforce Aging on Organizations and Human Resource Policies”. Final Report Delivered June 2005. ($40k shared w/t co-author)
2003 Bureau of National Affairs (BNA), Washington D.C. Research Grant: Study of "Executive Pay and Unionization." Publication of Working Paper in fall 2004 and paper submission ($45k – value of proprietary data provided free)
2003 Banco de Espana (Central Bank of Spain) Research Fellowship - Study of Spanish Demographic Transitions and Their Effect on Economic Growth and Labour Market Adjustment. Publication of two Central Bank of Spain working papers in 2004 and ECB working paper in 2005. JOPE and ROIW journal articles published in 2008. ($45k)
2002 Human Resource Development Canada (HRDC) Research Funding - North American Linkages Project. Research Paper entitled "Does Economic Integration Lead to Social Policy Convergence?" published as chapter in 2005. ($40k shared w/t co-author)
2001 Leverhulme Trust Grant (3yrs). Routledge Volume Chapters, BJIR & JLR papers, ($15k)
2000 IRPP-CSLS Research Grant. Paper published in CPP (2002) See Refereed Publications
1999 Social Research and Demonstration Corporation of Canada Grant. SRDC Volume (see in Chapters in Books entry No. 22). (1yr - $10k)
1998 American Compensation Association Research Grant. Thesis chapter 3
(Paper published in refereed publications entry no.20). ($5k)
1998 Canadian Employment Research Forum Grant. (See Refereed Publications No. 21).
1998 Social Science and Humanities Research Council (SSHRC) Grant (3yrs). PhD thesis submitted in 1999 and awarded in 2000. ($48k)

KEYNOTE PRESENTATIONS AND INVITED DISCUSSIONS/TALKS
1. “Understanding Why Employee Share Ownership Plans Really Work” GEO's Toronto Chapter November 12th, 2014. Offices of AON Hewitt Toronto, ON M5V 3M2
2. “From Facebook to Face time: What the Rise of Social Media Truly Means for Union Organizing and Effectiveness” Invited talk to Canadian Electricity Association Labour Relations Conference, March 27th, 2014. Toronto Ballroom (Second Floor) Doubletree by Hilton Toronto Downtown 108 Chestnut Street, Toronto, M5G 1R3
3. “Managing Moments of Power: The case of law practices” Ontario bar Association OBA Professional Development Managing partner Roundtable 2014 series, Wednesday February 19th, 2014, 20 Toronto Street, 2nd floor.
4. “Is the arbitration process dysfunctional? If so, what possible reforms are there?” Grievance Arbitration: Protecting Rights and Resolving Conflicts - February 12, 2014. Osgoode Professional Development Centre 1 Dundas St. W., 26th Floor Toronto, ON
5. "Social Dimensions of Free Trade Agreements" ILO workshop invitee. Thursday, 7 November 2013 at the Hotel Bloom in Brussels, Belgium.
6. “Unions and Civic Engagement” School of HRM Seminar Series. York University (Toronto, ON). April 10th, 2013.
7. “Career Paths in IR/HR” Coffee with the Prof Series. ERSA, Woodsworth College. March 6th, 2013.
8. “Unions and Voter Turnout” Masters of Public Policy and Administration, McMaster University (Hamilton, ON). February 15th, 2013.
9. “China and the Reversal of the Demographic Dividend”. Paper to be presented at the International Symposium on Demographic Dividend and Socio-economic Development (Institute of Population and Labor Economics, Chinese Academy of Social Sciences), Beijing Xiyuan Hotel, Beijing China, August 20-21st, 2012.
10. “Unions and Democratic Engagement” Department of Work and Organizations, Carlson School of Management, University of Minnesota. Minneapolis (MN), November 19th, 2012.
11. “Is the arbitration process dysfunctional? If so, what possible reforms are there?” Grievance Arbitration: Protecting Rights and Resolving Conflicts - February 15, 2012. Osgoode Professional Development Centre 1 Dundas St. W., 26th Floor Toronto, ON.
12. “Where is urban design advocacy?” Urban Forum Series sponsored by Toronto Society of Architects (TSA). November 2011, Arts and Letters Club (Toronto On).
13. “The Importance of Relative Standing to Public Policy” - Policy Discussion Forum on BPS Labour Relations, Labour Relations Secretariat, Ministry of Government Services. Niagara Room, 2nd Floor, Macdonald Block, 900 Bay Street. March 25th, 2011 -
14. “Government Wage Restraints: Are they justified? Will they work?” – Bargaining in the Broader Public Sector Conference, Toronto, December 8th, 2010. Sponsored by Lancaster House and Centre for Industrial Relations and Human Resources.
15. “Relative Income, Mental Accounting and the Life Satisfaction of Older Adults in Canada” - Presented at the University of Toronto’s Institute for Lifecourse and Aging, Toronto (Canada), November 11, 2010.
16. “Online Social Networking and Trade Union Membership: What the Facebook Phenomenon Truly Means For Labour Organizing in the 21st Century” – TUC Congress on “Stronger Unions 2010”, July 5th London, UK.
17. “After the Financial Crisis: The Future of the Global and Canadian Economy in the Short and Long Run/Despues de la Crsis Financiera: El Futuro de la Economia Goobal y de la Econkmia Candiense en el corto y el largo Plazo” Breakast Seminar, April 24th, 2010. Spanish-Language Professional Association of Canada. Steetsville (Ontario, Cananda). [Talk Delivered in Spanish]
18. “Why Small is the next ‘Big Thing’: Local economic strategies and how they can make a big impact” Employment Relations Student Association (ERSA’s) Academic Seminar “Coffee with the Profs” Series. March 4th, 2010. Innis College (University of Toronto).
19. “The New Generation of Workers & Union Agendas: How Unions are dealing with the Challenges”. Invited Panelist, CEA Human Resources Committee Labour Relations Symposium, Toronto (ON), February 9th, 2010.
20. “Do Business Improvement Areas Work? The Economics of BIA Activity” Toronto Association of Business Economists (TABE), Lunchtime Lecture, Toronto (ON), January 28th, 2010.
21. “What Management Wants in Industrial Relations: Lessons from Robber-Baron Days to the Sub-prime Mortgage Mess” IIRA Meetings, Sydney (Australia), August 24-26th, 2009.
22. “Ontario’s Changing Demographic and Healthcare Landscape: Implications for HOOP and its Stakeholders” Hospital of Ontario Pension Plan Lunchtime Invited Talks, June 25th, 2009.
23. “The Global Financial Crisis: Implications for Canada and Latin America” MexiCanPro, Toronto (ON), September 25th, 2008
24. “Why Do Young People Care About Volunteering?” Panel Discussion Exploring Issues Related to Youth and Young Adults, Forum on International Personnel, Spring Meeting, Toronto, 6/04/08.
25. “From the Two Faces of Unionism to the Facebook Society: North American Labour in a 21st Century Context” British University Industrial Relations Association (BUIRA) Invited Seminar Series, University of Westminster, October 29th, 2007
26. “International Demography and Your Local Economy…Or Why Should I Care About How Many Babies Are Born in Tehran?” Central Bank of Canada - Opening Conference Speech, May 28th, 2007.
27. “Treating Tenants as Consumers and Workers First – Renters Second” Federation of Rental Providers of Ontario (FRPO), Keynote Dinner Speech, November 30th, 2006.
28. ‘The Future of Industrial Relations Research and Learning: Consumer, technological and socio-demographic trends” Industrial Relations Librarians Society. Toronto , June 1st, 2006
29. “Everything That You Ever Wanted to Know about Ontario’s Demographic Future but Were Afraid to Ask” Ontario Progressive Party Policy Conference Convention, Keynote Dinner Speech, Feb 2006

CONFERENCE AND PAPER PRESENTATIONS
2014
“PhD IR Panel” Rafael Gomez (University of Toronto) CIRA-ACRI 51st annual Conference Borders Without Boundaries / Frontières sans limites May 24 - 26, 2014 / 24 - 26 mai 2014 Brock University St. Catharines, Ontario, Canada
“The Great Recession and union wage premiums in Canada” Rafael Gomez (University of Toronto) and Danielle Lamb (Ryerson University) CIRA-ACRI 51st annual Conference Borders Without Boundaries / Frontières sans limites
May 24 - 26, 2014 / 24 - 26 mai 2014 Brock University St. Catharines, Ontario, Canada
“Advances in Strategic Human Resource Management Theory and Practice” Discussant. LERA LERA/ASSA 2014 Meetings. Philadelphia (PA), January 4th, 2014.

2013
“Does Union Voice Lead to Greater Civic Engagement and if so Why?” CIRA-ACRI 50th Anniversary Conference. Ryerson University–University of Toronto, Toronto (Canada), May 30th 2013. w/t Alex Bryson, Paul Willman and Tobias Kretschmer.
“PhD Consortium” CIRA-ACRI 50th Anniversary Conference. Ryerson University–University of Toronto, Toronto (Canada), May 28th 2013
“Does Workplace Voice Compliment or Substitute Civic Engagement? Evidence from Britain, Canada and the US” With Alex Bryson, Paul Willman and Tobias Kretschmer. LERA LERA/ASSA 2013 Meetings; Union Members as Citizens (Symposium). San Diego (CA), January 5th, 2013.
“Is the arbitration process dysfunctional? If so, what possible reforms are there?” Paper presented at Grievance Arbitration: Protecting Rights and Resolving Conflicts - February 8th , 2013. Osgoode Professional Development Centre (Toronto, ON).

2012
“Introductory/Closing Remarks” 2012 Canadian Labour Board Law Conference & Bora Laskin Award Co-presenter Monday October 15th & Tuesday, October 16, 2012 at The Park Hyatt Hotel, Toronto.
“Corporate Social Responsibility and Greater Worker Protection: Two sides of the Same Coin?” Plenary Conference talk of the 16th ILERA World Congress. Philadelphia, PA, July 5th 2012. w/t Anil Verma.
“Unions and Civic Participation: Some Evidence from Canada”. Presented at The North American meeting of the Voices at Work Leverhulme UK and Ryerson University Centre for Labour Management Relations project held at Osgoode Hall Law School, York University, March 16 & 17 2012. w/t Paul Willman (presenting).
“Is the arbitration process dysfunctional?” Paper presented at Grievance Arbitration: Protecting Rights and Resolving Conflicts February 15, 2012. Osgoode Professional Development Centre (Toronto, ON).

2010
“Service Offshoring: Labour Adjustment Implications in the Canadian Context”: Outsourcing and Offshoring of Service Work: A British Journal of Industrial Relations Workshop, London School of Economics (UK), 17-18th November 2010. w/t Rene Morissette and Morley Gunderson.
“How Do Corporate Employee Relations and Human Rights Practices React To Downturns in Financial Performance?” Presented at the CERIC/WUN Workshop, Milan (Bocconi University) (Italy) (July 6th-7th, 2010). w/t (Anil Verma).
“Unions and Labour Disputes” Chair and Discussant at the Canadian Economic Association (CEA) Meetings, Universite de Laval (Quebec City, Canada), May 28th, 2010.
“How Do Corporate Employee Relations and Human Rights Practices React To Downturns in Financial Performance?” Presented at the EROB Group Department of Management Workshop, London School of Economics (LSE, UK) (March 12th, 2010). w/t (Anil Verma).
“The Current Economic Crisis: Can Industrial Relations Contribution to the Reform Process?” 62nd ASSA/LERA Annual Meetings. Atlanta (GA), January 5th, 2010

2009
“How Do Corporate Employee Relations and Human Rights Practices React To Downturns in Financial Performance?” Presented at the CERIC/WUN Workshop, Leeds (UK) (November 6-7th, 2009). w/t (Anil Verma).
“Virtual Work and Tele-work Amongst Professional Organizations” Presented at the HRSDC, Ottawa Ontario (March 31st, 2009). w/t Morley Gunderson and Juan Gomez.
“Employer Sponsored Pensions and Labor Mobility” HRSDC Ottawa, Ontario (March 19th, 2009). w/t Morley Gunderson.
“The Major Policy Questions in BIA Research” Convercité (Montreal, Quebec) (March 13th, 2009).
“Location, Age, or Ownership: What Drives Knowledge/Participation in Business Improvement Area (BIA) Activities by their Members?” Queen’s University, Department of Geography (Kingston, Ontario) (March 6th, 2009).
Commentary on "The Lifecourse Perspective as a Policy Lens". January 31st, 2009. Ottawa (Ontario). Research Directorate / Human Resources and Skills Development Canada.

2008
“Senior Management Incentives and Envious Workers” Centre for Communication Economics, Ludwig-Maxmimilus Universitat Munchen (Munich, Germany), December 19thth, 2008.
“Virtual Work: A UK and European Perspective.” Presented at the HRSDC Sponsored Workshop on Virtual Work Across Jurisdictions: Understanding its Impact on Regulated Professions – 13th International Metropolis Conference (Bonn, Germany), October 28thth, 2008.
“Corporate Social Responsibility and Firm Financial Performance” International Symposium on New World of Work” Universite Laval (Quebec City, Canada), August 28thth, 2008. (with A.Verma).
“Workplace Voice and Workplace Outcomes: An Empirical Analysis Using British Data” Academy of Management Meetings (Anaheim, California), August 13thth, 2008. (with P. Willman, T.Kretschmer and A. Bryson).
“Voice and Workplace Outcomes: What’s the Connection” 2nd Annual Voice and Value Conference (LSE, London UK), March 14thth, 2008. (with P. Willman and A. Bryson).
“Voice in the Wilderness? The Decline of Collective Representation and the Rise of Non-Union Voice and Progressive Human Resource Management” 60th Annual LERA Association Meetings (New Orleans, LO), 01/4/2008.

2007
“The Effect of Age Structure Change on Organizations” Centre for Communication Economics, Ludwig-Maxmimilus Universitat Munchen (Munich, Germany), December 14thth, 2007.
“Disability and Non-Standard Work” International Workshop on Disability and Work ONCE Foundation (Madrid, Spain), November 16thth, 2007.
“Perspectives on the European Chemical Industry and Worker Consultation” EECG conference on Social Dialogue in the European Chemical Industry, (Lisbon, Portugal), November 9, 2007.
“Mandatory Retirement: Myths, Myths and More Darn Myths” Presented at the Queens Conference on Retirement, Queen’s University – School of Public Affairs, October 30th, 2007.
“For Whom the Retirement Bell Tolls” Presented at the CLSRN Labour Adjustment Conference, McGill University, Montreal, September 30th, 2007.
“Disability and Non-Standard Work” Presented at the CLSRN Labour Adjustment Conference, McGill University, Montreal, September 30th, 2007.
“Globalisation and Labour Adjustment Roundtable” HRSD Roundtable, Chateau Laurier, Ottawa Sept 20th, 2007.
“International Demography and Your Local Economy…Or Why The Wal-Mart Manager in Cleveland Should Care
About How Many Babies Are Born in Tehran?” CIGI (Waterloo, Canada) Food For Thought ,Seminar Series, August 28th, 2007

“The Mind and the New Science of Consumer Behaviour” Universidad de Zaragoza (Spain), May 29.
“City Marketing and The Rise of User Oriented Urban Planning” Universidad de Complutense (Madrid, Spain), May 27th, 2007.
“Does High-Commitment Human Resource Management Crowd Out Union Representation? Evidence From Britain” Copenhagen Business School (Denmark), SASE Meetings, June 29/07.
“Interprovincial Labour Mobility” HRSDC-IC Roundtable on Internal Trade: Opportunities and Challenges, March 30, (Ottawa, Canada).
“CEO Compensation, Top Executive Managers and Unions” Centre for Economic Performance (LSE, London), February 13th, 2007.
““The International Labour Movement – Any Movement at All?” Oxford University (All Souls College), Oxford (UK) January 20th, 2007

2006
“The Off-shoring of Business Services: Labour Adjustment Implications for Canada,” University of Toronto, Rotman Business School, October 2006.
“Adjustment in Labour Markets Internal and External to the Firm” and “Imperfections in the Market for Skilled Workers.” HRSDC – Industry Canada Conference, Ottawa, September 14-15th 2006.
“The Role of Research on Trade Policy: Canada’s Experience with FTA and NAFTA” Presented for the Latin American Trade Network Conference, Buenos Aires (Argentina), August 5th 2006.
“Volunteer Activity and Disabled Workers”, SASE Conference, Trier (Germany), June 30, 2006.
“Voice and Workers” Canadian Economic Association Meetings, June 2006, Concordia University.
“The Demographic Implications of Immigration” Public Policy Forum Conference Toronto Convention Centre (Ontario) Integrating Immigrants: Building Partnerships That Work March 14-16, 2006.
“Population Ageing and the Costs and Benefits of Retirement to Firms” Industry Canada, SDC Conference on the Implications of Population Ageing for the Canadian Economy, Gatineau 01/ 28, 2006.

2005
“Non-Standard Vulnerable Workers: A Case of Mistaken Identity?” Non-Standard Work Employment Law Conference held at University of Western Ontario, October 14-16, 2005. With Morley Gunderson.
“Have Young Workers Lost Their (Collective) Voice?” Youth Employment in the Global Economy held at Hofstra University, NY on September 14-16, 2005. With Michele Campolietti and Morley Gunderson.
“Population Ageing and Sectoral Growth: The Case of the UK” 4th Global Conference on Business & Economics held at St. Hugh’s College, Oxford University, Oxford on June 26-28, 2005. With David Foot.
“Globalization and Declining Unionization” Presenter/Discussant of a paper by Mathew Slaughter at Governing the Global Workplace: An International Symposium, April 14th-15th 2005, Hubert Humphrey Institute of Public Affairs, University of Minnesota, Minneapolis MN, USA.
“Catching a Wave: The Diffusion of HPHRM and Voice Across Workplaces” at Management Seminar Series - Centre for Economic Performance, February 12th 2005, London School of Economics, (UK).

2004
“What do Unions Do To CEO Compensation?” Paper presented at University of Wellington, September 13th 2004, Wellington, New Zealand.
“What do Canadian Workers Want?” Paper presented at the Workshop on Voice and Voicelessness in the Anglo-American World, September 8th-10th, 2004, Auckland, New Zealand.
“Voice at Work” Paper presented at the 19th SASE Conference, July 9th-11th, 2004, Washington, D.C.
“The Importance of Being Mature” Paper presented at the Canadian Economic Association (Ryerson University, Toronto June 6th)
“The Importance of Being Mature” European Economic Association Meetings, August 20th Madrid (Spain)
“What Economic Integration May Mean For Russian Social and Labour Market Policies” Paper presented at the 3rd Annual Economics Summer School (co-sponsored by Moscow State University and ICSS), June, 9th-11th, 2004, Moscow, Russian Federation.
“Balancing Competing Interests as an Industrial Relations Paradigm” Paper presented at the 18th IIRA Conference, September 8th-12th, 2004, Berlin, Germany.

2003
“Why Do Voice Regimes Differ?” Presented at the 18th IIRA Conference, September 8th-12th, 2003, Berlin, Germany.
“Age Structure and Income Per Capita Across Countries” Paper presented at the Central Bank of Spain, July 17th, 2003, Madrid, Spain.
“Experiential Models of Worker Choice” Paper presented at Universitat Papeu Fabra, June 18th, 2003, Barcelona, (Catalonia) Spain.

2002
“Does Economic Integration Lead to Social Policy Convergence.” Paper presented at the North American Linkages Project Conference (HRDC), November 20th, 2002, Montreal.
“The Experience-Good Model of Union Membership” Paper presented at the 24th Annual Middlebury Economics Conference, April 18th, 2002, Middlebury College, Vermont.
“The Link Between Corporate Governance and Personnel Economics” Paper presented at the Moscow State University and New School of Economics Seminar, May 12th, 2002, Moscow, Russia.
“Does Supervision Lead to Lower Pay? A Test of Competing Efficiency-Wage Theories” Paper presented the Society for the Advancement of Socio-Economics, June 19-21, 2002, University of Minnesota, Minnesota.

2001
“Old Time Religion vs. Traditional Unionism: Alternatives in North America?” Paper presented at the Society for the Advancement of Socio-Economics, June 28th, 2001, University of Amsterdam, Netherlands.
“Is Mandatory Retirement Legislation a Constraint on Transitions to Retirement?” Paper presented at the Global HRM Conference, June 19-21, 2001, World Trade Centre, Barcelona, Spain.
“The Zero-Sum Illusion: The Interface Between Modern Economic Approaches to Economic Growth and Equity-efficiency Theory in Industrial Relations.” (Noah Meltz co-author). Paper presented at the Canadian Economic Association Meetings, June 3-4, 2001, Montreal, Canada.
“Age Structure, Income Distribution and Economic Growth.” (David K. Foot co-author). Paper presented at the Canadian Economic Association Meetings, June 3-4 2001, Montreal, Canada.
·“Old Time Religion vs. Traditional Unionism: Alternatives in North America?” Paper presented at the Canadian Industrial Relations Association, May 28th, 2001, Laval University, Quebec City.
“From Playstations to Workstations: Can Young Workers Be Organised?”. Paper presented at the International Conference on Union Growth, May 1st, 2001, University of Toronto, Canada.
“The Supply and Demand of Unionisation Revisited: Evidence from the U.S. and Canada”. Paper presented at the 53rd Annual Allied Social Sciences Association, January 8, 2001, New Orleans (LO)

Pre 2000
“Micro-Finance Borrower Default: Does Peer Group Lending Work?” (Eric Santor co-author). Paper presented at the Policy Studies Institute (PSI), November 30, 2000, London, United Kingdom.
“The Zero-Sum Illusion: The Interface Between Modern Economic Approaches to Economic Growth and Equity-efficiency Theory in Industrial Relations.”. Paper presented at the IRPP-CSLS Pre-conference on the Linkages Between Income Inequality and Economic Growth, November 3-4 2000, Montreal, Canada.
“Age Structure, Income Distribution and Economic Growth.” Presented at the IRPP-CSLS Pre-conference on the Linkages Between Income Inequality and Economic Growth, Nov 3-4 2000, Montreal, Canada.
“The Effect of Salary Compression on Individual and Organisational Performance” Paper presented at the Applied Econometrics Association (AEA) Conference, September 22-24 2000, Helsinki, Finland.
“Membership has Its Privileges: The Effect of Social capital on the Performance of Micro-Borrowers” Paper presented at the 12th Annual Society for the Advancement of Socio-Economics (SASE) Conference, London School of Economics, July 7-9, 2000, London, UK.
“Do Attitudes Towards Unions Matter?” Paper presented at the 8th Bi-Annual Canadian Studies Conference, Hebrew University, June 24-27 2000, Jerusalem, Israel.
“The Harmonisation of Labour Markets in North America: Convergence or Divergence?” Paper presented at the National Policy Research Conference, November 25-26 1999, Ottawa.
·“Compensation and Supervision: Is There a Trade-off between Higher Pay and Greater Supervisory Control of Workers?” CIRA Meetings, June 9, 1999, Sherbrooke, Quebec.
“The Integration of Labour Markets in North America.” Co-author Morley Gunderson. Presented on May 14, 1999 at the University of Alberta, sponsored by (SSHRC) Trends Project on North American Integration.
“Social Capital and Local Economic Development.” Paper presented on January 18, 1999 at the International Conference on Local Economic Development: Social Capital and Productive Networks, sponsored by the OECD, Mexico City, Mexico.
“Managerial Opposition to Unions: A Canada-U.S. Comparison.” Co-authors, Seymour Martin Lipset and Noah Meltz. Paper presented on January 3, 1999 at 51st Annual Industrial Relations Research Association (IRRA) Meeting, New York NY.
“The Effect of Social Capital, Peer Group Borrowing and Neighbourhood Spillovers on the Performance of the Self-employed.” 09/251998, International Conference on self-employment, (OECD), Canadian Employment Research Forum (CERF), Canadian International Labour Network (CILN), Burlington (ON).

QUOTED IN OR INTERVIEWED BY
· TVO's The Agenda, : “Small Business and Entrepreneurship October 2014
· Conservatives, Liberals, NDP duelling EI premium – Joan Bryden September 2014 measures:http://metronews.ca/news/canada/1166921/conservatives-liberals-ndp-duelling-ei-premium-measures/
· TVO's The Agenda: “Pay Inequality in Professional Sports” with Rafael Gomez, by Meredith Martin –http://theagenda.tvo.org/blog/agenda-blogs/agenda-plus-pay-inequality-professional-sports April 2014
· Radio Canada - “Wage structure effects of min wage increase.” May 2014
· TVO (The Agenda) - “Mind the Gap.” Pay equality April 2014
http://tvo.org/video/203211/mind-gap
· Ottawa Sun - “Sunshine list didn't keep salaries in line” – Megan Gillis April 2014 http://www.ottawasun.com/2014/04/02/sunshine-list-didnt-keep-salaries-in-line#
· CBC News - “Sunshine List 2014: Ontario's list drives salaries up, not down” - Kazi Stastna April 2014
http://www.cbc.ca/news/canada/sunshine-list-2014-ontario-s-list-drives-salaries-up-not-down-1.2592793

· TVO (The Agenda) – “Wages: Are You Paid Your Worth?” Feb 2014
http://ww3.tvo.org/video/200217/rafael-gomez-gauging-wages
· Globe & Mail “'Working for nothing': Canada joins global minimum wage debate”- Tavia Grant Jan 2014
http://www.theglobeandmail.com/report-on-business/economy/working-for-nothing-canada-joins-global-minimum-wage-debate/article16508375/?page=all
· Globe & Mail - “As unions lose power, Canada gets the blue-collar blues” – Greg Keenan November 2013
http://www.theglobeandmail.com/news/national/time-to-lead/as-unions-lose-power-canada-gets-the-blue-collar-blues/article15472784/?page=all
· TVO (The Agenda) - “Dude, Where’s My Future.” 3-part series September 2013
http://ww3.tvo.org/video/194966/young-peoples-agenda
· CBC Radio ”The House” (Toronto) - “Long-Form Census report.” Aug 2013
http://www.cbc.ca/thehouse/2013/08/17/mulcair/
· The National Post (Financial Post) - “The Sunshine Race to the Top” July 2013
http://opinion.financialpost.com/2013/07/08/terence-corcoran-the-sunshine-race-to-the-top/
· Metro Morning (CBC Radio) - “Small Business Role in Street Festivals.” July 2013
· Calgary Herald “At what amount should a public servant's salary be disclosed? Licia Corbella June 2013
http://www.calgaryherald.com/business/Corbella+what+amount+should+public+servant+salary+disclosed+with+poll/8490618/story.html
· TVO (The Agenda) - “Youth Jobs Debate.” May 2013
· CTV (News 24) - “National Household Survey/Census Debate.” May 2013
· Radio Canada (Toronto) - “Toronto Pubic Sector Labor Negotiations [in French].” Dec 2011/Feb2012
· Fourth Wall Exhibit (Toronto) “What Community Groups Can Learn from BIAs.” October 2011
http://thefourthwall.ca/main.htm
· CBC Radio “Metro Morning” (Toronto) - “The Inner suburbs of Toronto and Downtown.” December 2010
· Local Motion Documentary (Toronto: Coach House Press) -Episode 7 November 2010
http://www.youtube.com/watch?v=sS_XBpTUarI
· Globe & Mail - “A Neighbourhood Search for Identity” (Toronto) – Dave LeBlanc November 2010
http://www.theglobeandmail.com/real-estate/help-for-an-anonymous-neighbourhood-in-search-of-an-identity/article1785743/

· Calgary Herald “Disclosure Can Drive Up Salaries” (Calgary) - Marco Navarro-Genie October 2010
http://www.calgaryherald.com/business/Navarro+Genie+Disclosure+drive+salaries/3718488/story.html
· Globe & Mail - “Neighbourhood History Harvest” (Toronto) – Dave LeBlanc May 2010
http://www.theglobeandmail.com/real-estate/a-harvest-of-history-at-east-yorks-topham-park/article1590734/?cmpid=rss1
· CBC Radio & TV - “Mike Hornbrook” (Toronto) - “Youth Employment Issues.” May 2010
· Radio Mexico Nacional (Mexico City, Mexico) –“Canada’s View of NAFTA [in Spanish]” August 2009
· TVO/TFO (Toronto, CA) – Panorama “Employment Insurance Reform” April 2009
· CBC National News (Toronto,CA) - “From Reward to Hoard: The Many Difficulties of the Employee
Bonus.” Internet News Edition: http://www.cbc.ca/money/story/2009/03/26/f-bonus.html?ref=rss March 2009
·The Toronto Star (Toronto,CA) - “Urban Inversion.” Headline Article IDEAS section. August 2008
· The National Post (Toronto,CA) - “54east Project-Something Scarborrowed.” July 2008
· Financial Post (Toronto,CA) - “Setting the Record Straight on Mandatory Retirement.” February 2008
· CBC Radio “Here and Now” (Toronto) - “Local Culture and Neighbourhood Development.” Sept 2007
· The Globe and Mail (Toronto) - “ThinkTank Spurs Local Economic Development.” June 2007
· TVO/TFO (Toronto, CA) – Panorama “Labour Movement in Ontario– 10 years on” January 2007
· Radio Canada (Toronto, CA)- November, 2006 “Mandatory Retirement” November 2006
· NOW Magazine (Toronto, CA)- March, 2006 “Using Public Transit in Innovative Ways” March 2006
· The Globe and Mail (Toronto, CA)- January , 2006 “Urban Renewal: 54 East Project” January 2006
· The Toronto Star (Toronto, CA)- September 2005 “Youth and Unions ” September 2005
· The Toronto Sun (Toronto, CA)- August, 2005 “54East Project ” August 2005
· Expansion (Spain) - January 4th, 2004 “Demographic Change and Economic Growth” January 2004
· The Financial Times (London)- December 4th, 2002 – p.4 – “Union Decline in Britain” December 2002
· The Economist - September 10-16th, 2001 – Cover Story – “ProLogo” September 2001
· BBC News – August 8th, 2001 – “Spirituality at Work” August 2001
· BBC World Service – “International Labour Standards and Globalization” October 1999
· La Esfera Publica (Mexico) –Public Affairs Television Program January 1999

PROFESSIONAL AFFILIATIONS
American Economics Association (AEA); Applied Econometrics Association (AEA), Canadian Economic Association (CEA), Canadian Industrial Relations Association (CIRA), Industrial Relations Research Association (IRRA), Labor and Employment Relations Association (LERA) Royal Economic Society (RES), Society for the Advancement of Socio-economics (SASE).

PROFESSIONALSERVICE.
(Professional service beyond the University: e.g., office-holder in professional society, association conference organizer, journal editor/board member, member of grant selection committee, external PhD examiner. Indicate time spent, this year, for each. Indicate with an asterisk (*) if the activity is paid.)
a) Professional Academic Society Service
• Canadian Industrial Relations Association (CIRA) 50th Anniversary Organizing Committee (2012-2013)
•Labor and Employment Relations Association (LERA) Awards Committee Member [2010-present]
• Senior Journal Editorial Board Member – Relations Industrielles/Industrial Relation (RI/IR) [February 2011-present]
b) Non-Profit Service Memberships
• Community Assisted Riding for the Disabled (CARD) – North York [2007-present]
• People Plan Toronto (PPT) – Community engagement through better urban planning in the City of Toronto. [2008-present]
c) For-Profit Board Service Membership
• iSolon Inc., (UK) [2002-present]
d) Social Enterprise Directorship
• Co-founder and Director of ThinkTankToronto (TTT) [2004-present]

OUTREACH SERVICE.
(Community activities that have some relation to your position at the University, such as high school liaison, public lectures, popular articles, media panels and interviews, judging science fairs, art/film festival adjudications.)
· “We Are Lawrence Project” (October 25-December 1st, 2014) - This photographic exhibit explored the people living along Lawrence Avenue and what it meant to them. http://wearelawrenceavenue.com/
· “The Fourth Wall: Transforming Cities” (October 25-December 31st, 2011) - This interactive exhibit explores 36 proposals for democratic renewal at City Hall, borrowing inspiration from other cities as well as from Toronto's own past. http://www.urbanspacegallery.ca/exhibits/fourth-wall-transforming-cities [Contributor to 1 of the 36 ideas quoted)
· “Mayoral Debate Sponsor/Co-host” (November 2010) As part of my work with PPT helped plan and introduced one of the City of Toronto Mayoral Candidate debates in 2010 at the St. Lawrence Centre.
· “The Topham Park History Project” (January – May 2010) - This project involved working with Toronto Historical
Board, the Eat York Historical Society and with City of Toronto Councilor Janet Davis and senior grade school students at G.A. Brown Middle School to construct a historical poster plaque that was unveiled at the school in its
Foyer.
· “Fringe Benefits: Understanding the Growth of Toronto’s Urban Periphery” (July 25th -December 31st, 2008) - This interactive exhibit at the Design Exchange DX explored the growth of Toronto’s outer suburbs and how new arrivals into the city have now by-passed the older city of Toronto and the 416 area. I contributed two large format panels to the exhibit.

PROFESSIONAL EXPERIENCE
2011-2015 CIRA RI/IR Editorial Board, Reviewing papers authoring book reviews advising on editorial policy.
2010-2014 LERA Awards Committee Member, Labor and Employment Relations Association awards committee, University of Illinois.
2009-2011 Steering Committee, People Plan Toronto (Toronto, Canada): www.peopleplantoronto.org
2006-present Board Member, CARD (Toronto, Canada): www.card.ca
2005-2009 Director and Co-Founder, 54east Magazine (Scarborough, Canada): www.54eastmagazine.com
2004-present Director and Co-Founder, ThinkTankToronto (Toronto, Canada): www.thinktanktoronto.ca
2004-2008 Business Advisor, WorkWorthDoing (Toronto, Canada): Acting as a mentor for a small social enterprise aimed at promoting social and environmentally progressive business ideas.
2003-07 Treasurer and Board Member, UK ICECats (London, UK): UK Ice Cats is a London-based charity aimed at helping socially excluded youth in East London learn how to play ice-hockey. www.ukicecats.org.uk
2001-2014 Senior Consultant and Board Member, Isolon Ltd (London, UK): CEO turnover in the Telecom sector. Produced report entitled “Turnover @ the Top: Is there a solution to executive turnover?”
1997-2000 Senior Consultant, Calmeadow Metrofund (Toronto): Examined the demand for micro-finance in the Metro Toronto Area. Designed and supervised a survey of Calmeadow Metrofund borrowers intended to measure barriers to credit and the determinants of self-employment success. Established a research design to estimate the demand for micro-credit in the Davenport area of Toronto.
1999 Research Consultant, Department of Finance, Economic Development Policy Branch, Canada: Designed and supervised a survey of micro-finance institutions in Canada. Also analysed self-employment trends in order to forecast the projected demand for micro-credit borrowing among small-scale business owners.
1996-1999 Researcher, Centre for International Studies (University of Toronto). Undertook work under the direction of Dr. Sylvia Ostry. The China-WTO project was one of a number of projects completed in this time.
1996-1997 Research Consultant, Bacardi-Martini, Ltd: Undertook an examination of the market demand for new product introductions and the associated human resource implications of expanding product lines and advertising campaigns.
1995 Junior Economist, Ministry of Economic Development Trade Tourism, Ontario:
Undertook investigation and analysis on such issues as growing foreign markets, growth of leading industries in Ontario, foreign country profiles, and the skill requirements for knowledge based industries such as telecommunications.

APPENDIX D - Existing Enforcement Mechanisms for Compulsory Trades in Construction

Occupational Health and Safety Act, R.S.O. 1990, c. O.1

Definitions, s.1:
The definition of competent persons includes someone who “is qualified because of knowledge, training and experience to organize the work and its performance”

R.R.O. 1990, Reg. 854 – Mines and Mining Plants, s. 201:
An operator of mobile cranes, shovels and boom trucks, or similar equipment, whereby rope is wound onto a drum driven by an engine for the purpose of raising, lowering or swinging materials must have a valid certificate of qualification as a hoisting engineer or be qualified in accordance with a program approved by the Director

O. Reg 67/93 – Healthcare and Residential Facilities, s. 68(6), 72(2):
Prohibitions in regard to working with electrical equipment over a particular voltage do not apply to workers with valid certificates of qualification as electricians or workers who have equivalent qualifications by training or experience

O. Reg. 213/91 – Construction Projects, s. 150(1), 182(1):
Subject to certain exceptions, no worker shall operate a crane or similar hoisting device unless the worker holds a valid certificate of qualification as a hoisting engineer or the worker is an apprentice and is working pursuant to a training agreement.

No worker shall connect, maintain or modify electrical equipment or installations unless the worker holds a valid certificate of qualification as an electrician or the worker is otherwise permitted to do so under the Ontario College of Trades and Apprenticeship Act, 2009 or the Technical Standards and Safety Act, 2000.

Technical Standards and Safety Act, 2000, S.O. 2000, c.16

O. Reg. 215/01 – Fuel Industry Certificates, s. 13(1), 20(2), 31(1), 39(2), 52(2), 52.2(2)
An applicant for a ICE certificate must have a valid certificate of qualification as a as an agricultural equipment technician, an automotive service technician, a fuel and electrical systems technician, a heavy duty equipment technician or a truck and coach technician.

A person holding a G.1 Certificate can disconnect and reconnect water piping in order to exchange, service or install an approved appliance and carry out the replacement of water pipe necessary to complete the reconnection or installation of controls, control systems, components and accessories that are essential to the operation of the appliance, but cannot perform any additional plumbing unless he or she has a valid certificate of qualification as a plumber or steamfitter
A person holding a G.1 Certificate can install, service, remove or replace components and accessories that form part of the gas-side of a refrigerating or air-conditioning unit, but cannot perform any work beyond the gas-side unless he or she has a valid certificate of qualification as a refrigeration and air conditioning systems.

A person holding a G.1 Certificate can install, repair, service and maintain electrical wiring from an existing branch circuit containing overcurrent protection to appliances in order to exchange, service, repair or install an approved appliance and carry out the replacement of electrical wiring necessary to complete the reconnection or installation of controls, control systems, components and accessories that are essential to the operation of the appliance, but the person shall not run wiring back to the electrical supply panel or perform any additional wiring unless he or she has a valid certificate of qualification as an electrician.

A person holding a G.1 Certificate can install, repair, service, remove or replace the plenum connection or components forming part of the plenum connection in order to complete the installation of a natural gas or propane appliance, but the person shall not perform any sheet metal work beyond the plenum connection unless he or she has a valid certificate of qualification as a residential (low rise) sheet metal installer or sheet metal worker

A person holding a DA certificate can install, alter, purge, activate, repair, service or remove any unvented residential natural gas or propane gas appliance and its equipment or a vented refrigerator that has an input of 100,000 Btuh or less but cannot perform any other electrical work other than that which is specified unless he or she has a certificate of qualification as an electrician.

A person holding an OBT-1 certificate can disconnect and reconnect water piping in order to exchange, service or install an approved appliance and to carry out the replacement of water pipe necessary to complete the reconnection or installation of controls, control systems, components and accessories that are essential to the operation of the appliance, but cannot perform any additional plumbing work unless he or she has a valid certificate of qualification as a plumber or steamfitter

A person holding an OBT-1 certificate can install, service, remove or replace components and accessories that form part of the fire-side of a refrigerating or air-conditioning unit, but the person shall not perform any work beyond the fire-side unless he or she has a valid certificate of qualification as a refrigeration and air conditioning systems mechanic or residential air conditioning systems mechanic

A person holding an OBT-1 certificate can install, repair, service and maintain electrical wiring from an existing branch circuit containing over current protection to appliances in order to exchange, service, repair or install an approved appliance and carry out the replacement of electrical wiring necessary to complete the reconnection or installation of controls, control systems, components and accessories that are essential to the operation of the appliance, but the person shall not run wiring back to the electrical supply panel or perform any additional wiring unless he or she has a valid certificate of qualification as an electrician.

A person holding an OBT-1 certificate can install, repair, service, remove or replace the plenum connection or components that form part of the plenum connection in order to complete the installation of an oil-fired appliance but the person shall not perform any sheet metal work beyond the plenum connection unless he or she has a valid certificate of qualification as a residential (low rise) sheet metal installer or sheet metal worker.

A person with a CDT certificate can install, repair, service and maintain electrical wiring for natural gas or propane-fired appliances from an existing branch circuit containing over current protection, but shall not run wiring back to the panel or perform any other type of electrical work related to wiring of the appliance unless he or she holds a valid certificate of qualification as an electrician.

A person with a GUT-1 certificate can disconnect and reconnect water piping in order to inspect, test, adjust, activate or reactivate approved appliances or controls, control systems, components and accessories that are essential to the operation of the appliance, but the person shall not perform any additional plumbing unless he or she has a valid certificate of qualification as a plumber or steamfitter

A person with a GUT-1 certificate can disconnect and reconnect electrical wiring in order to inspect, test, activate or reactivate an approved appliance and carry out the replacement of electrical wiring necessary to complete the reconnection of controls, control systems, components and accessories that are essential to the operation of the appliance; but the person shall not perform any additional wiring unless he or she has a valid certificate of qualification as an electrician.

Electricity Act, 1998, S.O. 1998, c. 15, Sched. A

O. Reg. 570/05 – Licensing of Electrical Contractors and Master Electricians, s. 7(3), 11
A master electrician shall not carry out electrical work unless he or she holds a valid certificate of qualification that authorizes the carrying out of the electrical work

An individual who applies for a master electrician licence shall not be issued the licence unless the applicant demonstrates at least three years’ experience either i) practising the trade of electrician under a valid certificate of qualification, ii) working for an electrical contractor as a licensed professional engineer registered with the Professional Engineers of Ontario, iii) working for an electrical contractor in the capacity of a certified engineering technician or a certified engineering technologist registered with the Ontario Association of Certified Engineering Technicians and Technologists, or iv) practising the trade of powerline technician under a valid certificate of qualification

APPENDIX E - Environmental Protection Legislation re Construction

Environmental Assessment Act, R.S.O. 1990, c. E.18

An undertaking is defined as (s.1) :
• an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity by or on behalf of Her Majesty in right of Ontario, by a public body or public bodies or by a municipality or municipalities,
• a major commercial or business enterprise or activity or a proposal, plan or program in respect of a major commercial or business enterprise or activity of a person or persons other than a person or persons referred to in clause (a) that is designated by the regulations, or
• an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity of a person or persons, other than a person or persons referred to in clause (a), if an agreement is entered into under section 3.0.1 in respect of the enterprise, activity, proposal, plan or program.

Every proponent who wishes to proceed with an undertaking shall apply to the Minister for approval to do so (s.5(1))

The proponent shall give the Ministry proposed terms of reference governing the preparation of an environmental assessment for the undertaking (s.6(1))

The proponent shall submit an environmental assessment for an undertaking to the Ministry (s.6.1(1))

Applies to government construction projects and private construction project by bodies "designated" under the Act.

Environmental Protection Act, R.S.O. 1990, c. E.19

Regulation 102/94 – Waste Audits and Waste Reduction Work Plans

The following applies to a person who undertakes, on their own behalf or on behalf of another person, a construction project consisting of the construction of one or more buildings with a total floor area of at least 2,000 square metres:
• The builder shall conduct a waste audit covering the waste that will be generated in the construction project. The audit shall also address the extent to which materials or products used consist of recycled or reused materials or products (s.20)
• The builder shall prepare a written waste reduction work plan, based on the waste audit, to reduce, reuse and recycle waste generated in the construction project (s.21)
• The builder shall implement the waste reduction work plan (s.22)

Regulation 103/94 – Industrial, Commercial and Institutional Source Separation Programs
A person who undertakes, on their own behalf or on behalf of another person, a construction project consisting of the construction of one or more buildings with a total floor area of at least 2,000 square metres shall implement a source separation program for the waste that will be generated in the construction of the structure or shall ensure that such a program is implemented (s. 7)

Clean Water Act, S.O. 2006, c. 22

If a source protection plan that is in effect designates a land use as a land use to which this section should apply and an area within which this section should apply,
• a person shall not make an application under a provision of the Planning Act prescribed by the regulations for the purpose of using land for that land use at any location within that area; and
• despite section 58, a person shall not construct or change the use of a building at any location within that area, if the building will be used in connection with that land use,
unless the risk management official issues a notice to the person under subsection(2). (s. 59)

Nutrient Management Act, 2002, S.O. 2002, c.4

Regulation 267/03 - General

If this Regulation requires a person who owns or controls an agricultural operation to have a nutrient management strategy for carrying out the operation, no person shall construct a building or structure on a farm unit on which the operation is carried out, where the building or structure is used to house farm animals or store nutrients, unless,
• the nutrient management strategy applicable to the operation carried out on the farm unit contemplates the construction of the building or structure; and
• the nutrient management strategy has been approved in accordance with this Regulation.

No person shall construct a regulated mixed anaerobic digestion facility on a farm unit on which an agricultural operation is carried out unless the nutrient management strategy applicable to the operation carried out on the farm unit contemplates the construction of the facility and has been approved in accordance with this Regulation. (s. 11.1)

A nutrient management strategy for an agricultural operation requires the approval of a Director if (s. 27(1)),
• A person who owns or controls the land on which the operation is carried out constructs or causes to be constructed any building or structure that is used to house farm animals or to store manure and that is located or to be located on the land, if a building permit in respect of the building or structure would be required under the Building Code Act, 1992, but for the application of clause 1.3.1.1. (1) (b) of Division C of the Building Code
• A person who owns or controls the land on which the operation is carried out constructs or causes to be constructed on the land a permanent nutrient storage facility that is made of earth and is intended to store manure

A person who owns or controls a low-density or high-density permanent outdoor confinement area shall not construct a new structure or pave all or part of the load-bearing surface of the confinement area, so as to increase the capacity of the confinement area, unless the confinement area is not located (s.55),

• within 15 metres of a drilled well that has a depth of at least 15 metres and a watertight casing to a depth of at least six metres below ground level;
• within 100 metres of a municipal well;
• within 30 metres of any other well; or
• within 15 metres of a field drainage tile

On or after the day on which this Regulation requires an operation to have a nutrient management strategy or nutrient management plan, no person shall construct or expand a permanent nutrient storage facility used on a farm unit in the course of the operation if the facility is located (s. 63(1)),
• within 15 metres of a drilled well that has a depth of at least 15 metres and a watertight casing to a depth of at least six metres below ground level;
• within 100 metres of a municipal well;
• within 30 metres of any other well, if the facility is designed to store only agricultural source materials; or
• within 90 metres of any other well, if the facility is designed to store non-agricultural source materials

Ontario Water Resources Act, R.S.O. 1990, c. O.40

Subject to section 47.3 of the Environmental Protection Act, no person shall construct a well in an area designated by the regulations except under and in accordance with a well construction permit issued by a Director (s. 36)

A Director may refuse to issue or to renew or may revoke a well construction permit, may impose terms and conditions in issuing or renewing or after issuing or renewing a well construction permit and may alter the terms and conditions of a well construction permit that has been issued or renewed where the Director is of the opinion, upon reasonable and probable grounds, that (s.38),

• the proposed well or its operation would contravene this Act or the regulations or any other Act or a regulation under any other Act;
• there is or is likely to be danger to the health or safety of any person;
• there is or is likely to be harm or material discomfort to any person;
• there is or is likely to be impairment of the quality of any air, land or water for any use that is being or is likely to be made of it;
• there is or is likely to be reduction of the quantity of water available for any use that is being or is likely to be made of it;
• there is or is likely to be injury or damage to any property or to plant or animal life;
• any property or plant or animal life is or is likely to be rendered, directly or indirectly, unfit for use by people;
• there is or is likely to be loss of enjoyment of the normal use of any property;
• there is or is likely to be interference with the normal conduct of any business; or
• there is a breach of a term or condition of the permit

No person shall engage in the business of constructing wells except under and in accordance with a well contractor licence issued by a Director or unless exempt under the regulations (s.39)

A Director may refuse to issue a well contractor licence where the Director is of the opinion, upon reasonable and probable grounds, that (s. 41),
• the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors affords grounds for belief that the business of constructing wells will not be operated in accordance with the law and with honesty and integrity;
• the applicant or, where the applicant is a corporation, its officers or directors are not competent to engage in the business of constructing wells;
• the applicant is not in a position to observe or carry out the provisions of sections 35 to 50, the regulations and the licence; or
• the applicant or, where the applicant is a corporation, its officers or directors have been grossly negligent in carrying on the business of constructing wells under the authority of a licence issued under section 40 or a predecessor of that section.

A Director may revoke or suspend or may refuse to renew a well contractor licence where the Director is of the opinion, upon reasonable and probable grounds, that (s. 42),
• any person has made a false statement in any material part of the application for the licence or a renewal thereof or of any report, document or other information required to be furnished by this Act or the regulations or any other Act or a regulation under any other Act that relates to wells;
• the past conduct of the licensee or, where the licensee is a corporation, of its officers or directors affords grounds for belief that the business of constructing wells has not been operated or will not be operated in accordance with the law and with honesty and integrity;
• the licensee is in contravention of sections 35 to 50 or the regulations;
• a change in the officers or directors of a corporation that is a licensee affords grounds for refusing to issue a licence under clause 41 (a), (b) or (d);
• the services that can be provided by the licensee have been misrepresented;
• the licensee is not competent to carry on or has been grossly negligent in carrying on the business of constructing wells; or
• the licensee is not in a position to observe or carry out the provisions of sections 35 to 50, the regulations or the licence.

Lakes and Rivers Improvement Act, R.S.O. 1990, c.L.3

No person shall construct a dam in any lake or river in circumstances set out in the regulations without the written approval of the Minister for the location of the dam and its plans and specifications (s. 14)

An application for approval of the location of a dam must be made in writing and must be accompanied by (s.14),
• a diagram showing the proposed location of the dam, any area to be flooded and the land of persons other than the applicant that may be affected by the flooding; and
• a statement showing the purpose, type and size of the dam, whether the dam will be temporary or permanent, the quantity of water to be held, and the rate of flow of water that may be diverted

Approval is required (O.Reg 454/96 – Construction, s.2),
• to construct or decommission a dam that holds back water in a river, lake, pond or stream to raise the water level, create a reservoir to control flooding or divert the flow of water;
• to make alterations, improvements or repairs to a dam that holds back water in a river, lake, pond or stream to raise the water level, create a reservoir to control flooding or divert the flow of water, if the alterations, improvements or repairs may affect the dam’s safety or structural integrity, the waters or natural resources; or
• to do any of the following things outside the area of jurisdiction of a conservation authority, or within the area of jurisdiction of a conservation authority that has in effect a regulation governing development, interference with wetlands and alteration to shorelines and watercourses if the area in which the work will be done does not form part of the area covered by the regulation:
• Constructing a water crossing draining an area greater than five square kilometres, unless construction is undertaken by a Ministry or municipality on lands owned by the Crown or the municipality undertaking the construction.
• Channelizing a river or stream that may harmfully alter fish habitat or impede the movement of fish in a river, stream or lake, except for the installation or maintenance of a drain, subject to the Drainage Act;
• Enclosing or covering a length of river or stream for greater than 20 metres in length.
• Installing, if the installation may result in damming, forwarding or diverting water, a cable or pipeline into the bed of a river, stream or lake except for the installation of heat loops, water intakes and service cables for private residences.
• Installing a temporary dam for the purpose of removing water or water flow from an area during construction of any of the works described in subclauses (i) to (iv).

Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31

O. Reg. 140/02 – Oak Ridges Moraine Conservation Plan

No person shall, except as permitted by this Plan (s. 5),
• use land or any part of it;
• undertake development or site alteration with respect to land; or
• erect, move, alter or use a building or structure or any part of it

Provincial Parks and Conservation Reserves Act, 2006, S.O. 2006, c. 12

Except in accordance with the terms and conditions of a work permit issued under this Act, no person shall, in a provincial park or conservation reserve, cause or permit (s.22),
• the construction, expansion or placement of any building, structure or thing;
• the construction of any trail or road;
• the clearing of any land;
• the dredging or filling of any shore lands; or
• any activity permitted under section 17, 18, 19 or 20 that causes, results or is expected to result in a major disruption or impairment of the ecological integrity of a provincial park or conservation reserve

A park superintendent or conservation reserve manager shall issue a work permit authorizing work to be performed in a provincial park or conservation reserve to any person who applies for the permit, unless he or she is of the opinion that the work for which the permit is required (Regulation 345/07 – Work Permits, s. 1(1)),
• is contrary to law;
• is inconsistent with or does not conform to,
o the management direction for a provincial park or conservation reserve,
o a policy, procedure or directive of the Ministry of Natural Resources; or
• is likely to create a threat to the environment, public safety or to a natural resource, including lands, waters and watercourses, forests, flora, wildlife and fisheries

APPENDIX F - Building on a Stable Foundation: Lessons Learned from the Ontario Labour Relations Board's Approach to Compulsory Trade Enforcement by Charlene Wiseman and Lorne Richmond

A. OVERVIEW

1. On April 8, 2013, a new framework for the regulation of trades was enacted when the Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA)[1 ]came into effect, replacing the Trades Qualification and Apprenticeship Act (TQAA)[2 ]and the Apprenticeship and Certification Act (ACA).[3]

2. The OCTAA regime borrows much from the one that it replaces. The OCTAA regime, like the TQAA,[4] establishes a number of trades, defines the “scope of practice” for each trade, designates certain trades as having “compulsory” status, and restricts the practice of compulsory trades to those who are formally qualified to work in those trades.

3. A fundamental difference between the TQAA and the OCTAA regimes lies in the enforcement of the compulsory trades restrictions. Under the TQAA, this took place under the Occupational Health and Safety Act (OHSA).[5] Adjudicative oversight was exercised by the Ontario Labour Relations Board (the “Board”), which had the expertise required to interpret the restrictions purposively, contextually and consistently with its own longstanding jurisprudence on jurisdictional disputes that evolved under s. 99 of the Ontario Labour Relations Act (LRA).[6] Affected trade unions had full status and standing in appeals to the Board, which ensured that the Board’s determinations took into account all relevant facts and perspectives. The Board also had express jurisdiction to suspend a compliance order pending adjudication on the merits, which safeguarded against sudden and unnecessary disruptions to construction projects. The Board’s suspension power specifically protected the trades regulation system from being misused to bypass, and hence undermine, the Board’s jurisdictional dispute resolution system.

4. Under the new regime, the role of the Board has been eliminated. OCOT inspectors issue charges that are prosecuted under the Provincial Offences Act.[7] These charges can only be challenged before the provincial court, which lacks both the expertise and the jurisdiction to interpret compulsory trades restrictions in their proper context. Trade unions have no standing to challenge charges or to participate in proceedings before the provincial court, even where the charges in question fundamentally affect the interests of the workers that they represent. The provincial court also lacks jurisdiction to issue a stay, which unnecessarily threatens the stability of construction projects and opens the door to abuse. The result is a compulsory trades enforcement regime that lacks the required expertise, principled guidance and procedural safeguards necessary to ensure its fairness, rationality and overall legitimacy.

5. The discussion below is organized into the following sections. In section B, we describe the manner in which the compulsory trades regulation system has historically been enforced and considered by the Board. In section C, we provide a synopsis of how the OCTAA regime currently operates, with a particular emphasis on the shortcomings of the current enforcement processes. In section D, we draw general conclusions about how the present system could be improved. The accompanying submission draws from this analysis to make specific recommendations for improvement.

B. ENFORCEMENT AND CONSIDERATION OF TRADES REGIME BY THE BOARD

6. The Board has developed expertise interpreting compulsory trades restrictions in two ways. First, the Board exercised direct adjudicative oversight over the enforcement of compulsory trades restrictions under OHSA. Second, the Board considered compulsory trade restrictions in adjudicating jurisdictional disputes.

1. The Board Heard Appeals of Orders Made Under TQAA/OHSA

7. This section addresses the manner in which compulsory trades restrictions were addressed under the TQAA regime. The discussion will proceed in two parts. First, we will set out and explain the relevant statutory and regulatory provisions. Second, we will summarize and discuss the jurisprudence that arose out of the TQAA/OHSA framework.
(a) The TQAA/OHSA Framework for Compulsory Trades

8. Under the TQAA and its regulations, a number of trades were accorded “compulsory” status. This was done in the following way: under the TQAA, a number of trades were designated as certified trades,[8] which brought those trades under the ambit of the TQAA. All of those trades were made prima facie compulsory by ss. 9, 10(2) and 10(3) of the TQAA, which together restricted the right to work or be employed in the certified trades to those holding a subsisting certificate of qualification for that trade. [9] Sections 10(2) and 10(3), which are the most critical provisions for our purposes, provided as follows:

Persons who may work in a certified trade
(2) No person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), shall work or be employed in a certified trade unless he or she holds a subsisting certificate of qualification in the certified trade.
Persons who may be employed in a certified trade
(3) No person shall employ any person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), in a certified trade unless the person employed holds a subsisting certificate of qualification in the certified trade.

9. However, regulations promulgated under the TQAA then excluded the application of ss. 9, 10(1) and 10(2) for all but 10 of the certified trades, thereby nullifying their compulsory status.[10] The 10 trades whose compulsory status were not nullified by the regulations became known as the compulsory trades.[11]

10. In theory, violations of the TQAA’s compulsory trades restrictions could be prosecuted as provincial offences under the Provincial Offences Act (POA).[12] However, commencing in 1999, enforcement also became possible under the OHSA. That is, the compulsory trades, as established and defined by the TQAA, were incorporated into a regulation under OHSA, Regulation 572/99, where they were referred to as “scheduled trades”.[13] The TQAA’s prohibitions on working in those scheduled trades were essentially incorporated into Regulation 572/99; however, a further provision was added to specify that “carry[ing] out work” in a scheduled trade meant performing work within that trade’s scope of practice, as set out in the TQAA regulation applicable to that trade. The prohibition, quoted in full, is as follows:[14]

3. (1) A worker shall not carry out work in a scheduled trade unless he or she is authorized to carry out work in that trade under the Trades Qualification and Apprenticeship Act. O. Reg. 76/05, s. 1.
(2) Every employer who employs a worker in a scheduled trade shall ensure that the worker is authorized to carry out work in that trade under the Trades Qualification and Apprenticeship Act. O. Reg. 76/05, s. 1.
(3) For the purposes of this section, a worker is carrying out work in a trade if that work is part of the trade as set out in the regulation made under the Trades Qualification and Apprenticeship Act and referred to in Schedule 2. O. Reg. 76/05, s. 1.

11. The above prohibition could then be enforced as an OHSA health and safety violation, according to the procedures existing under OHSA.[15 ]As a matter of policy and practice, the trade restrictions were, for the most part, enforced under OHSA. There were very few, if any, reported prosecutions arising out of a direct breach of the TQAA.[16]

12. The key elements of the OHSA enforcement process were, and remain, as follows:
(a) A MOL inspector inspects the site and issues a compliance order.[17]
(b) The Board has exclusive jurisdiction to hear appeals of the order.[18]
(c) Anyone who considers themselves aggrieved by the order, including a trade union, has the right to appeal the order.[19]
(d) In the case of an appeal by an employer or an employee where a trade union represented the workers, the trade union is a party to the appeal.[20]
(e) The Board has broad powers on an appeal,[21] including the power to expedite proceedings[22] and to suspend the operation of the order pending the disposition of the appeal.[23]

(b) Board’s Jurisprudence Under Regulation 572/999

13. It quickly became apparent that the compulsory trades restrictions were overbroad. The scopes of practice for the compulsory trades, like the scopes of practice for all of the regulated trades, included all the work that the tradesperson had to be able to do in order to practice his or her trade competently. While such definitions are useful for training purposes, it is irrational to employ those same definitions for enforcement purposes. This faulty logic is best illustrated by way of an obvious example: all paramedics must be trained in CPR to qualify as paramedics, but this does not mean that only paramedics can practice CPR. Similarly, all electricians may have to be trained in conduit installation in order to qualify as an electrician, but it is fallacious and harmful to conclude that no other tradesperson should be permitted to install conduit. Yet this is precisely what the compulsory trades restrictions appear to provide.

14. Thus, enforcing Regulation 572/99 to its letter would have wreaked havoc with the operation of the construction industry, without serving the purposes for which the Regulation 572/99 was enacted. In the jurisprudence that developed under Regulation 572/99, the OLRB addressed the overbreadth of Regulation 572/99 by interpreting it purposively and contextually: orders were only upheld under Regulation 572/99 if the work in question, understood in its practical context, required the specialized skills particular to a compulsory trade in order to be performed safely. If the work in question could be performed safely by members of other trades (regulated or non-regulated), then that work would not be considered exclusive to the compulsory trade, despite the technical language of Regulation 572/99 and the TQAA regulations which it incorporated.

15. The case of PCL Constructors provides a good illustration of how the TQAA’s certified trade restrictions were enforced and adjudicated under OHSA. In that case, PCL had a contract to perform work in connection with a multi-million dollar redevelopment of the Kingston General Hospital. The work included the demolition, removal and disposal of HVAC materials after they had been capped off by certified sheet metal workers. PCL subcontracted some of this demolition work to a company that employed members of the Labourers’ International Union of North America, Local 247 (“the Labourers”). In response, The Sheet Metal Workers Association filed a complaint with the Ministry of Labour alleging that the work in question fell within the scope of practice of the compulsory trade of sheet metal worker, contrary to Regulation 572/99. A “sheet metal worker” was defined in TQAA Regulation 1077 to include a person who, among other things, “handles” and “dismantles” sheet metal.[24]

16. The inspector who visited the site upheld the Sheet Metal Workers’ complaint. The inspector appears to have found that by demolishing the HVAC materials, the labourers were “handling” and “dismantling” sheet metal within the meaning of Regulation 1077, and thus performing tasks reserved for certified sheet metal workers under Regulation 572/99. The Inspector issued orders preventing labourers from continuing to carry out the demolition work in question.

17. The orders were appealed by both PCL and the Labourers. Both applicants sought an immediate suspension of the order pursuant to s. 61(7) of OHSA. In a decision dated May 7, 2009 (two weeks after the order was issued), the Board granted the suspension.[25] It made this decision on the basis of the following considerations.

18. First, the Board determined that PCL and the Labourers had established a strong prima facie case that the term “dismantles”, read in the context of the entire regulation and the work that the various trades do, did not include the kind of “demolition” that the labourers were performing.[26]

19. Second, the Board considered whether the suspension of the order would endanger worker safety. The Board did not find that worker safety would be endangered, and in this regard took note of the “fact that the vast majority of demolition work in this province is not performed by sheet metal workers.” [27] On the other hand, the Board found that the failure to suspend the order could create danger. Given that “demolition work is an inherently dangerous occupation”, adding a sheet metal worker to a demolition site presented an additional risk factor.[28]

20. The Board’s assessment of the safety factor in PCL is consistent with how it has approached this issue in other suspension applications adjudicated under Regulation 572/99. In some of its decisions, the Board has expressly noted that violations of the compulsory trades restrictions do not necessarily raise health and safety concerns. As such, when inspectors’ orders have been based solely on a violation of Regulation 572/99, without any additional findings of risk, the Board has tended to resolve the safety factor in favour of the applicant seeking to overturn the order. As the Board stated in another case, in which carpenters were alleged to have performed work exclusively reserved for plumbers:[29]

“The sole issue for the Inspector was whether or not the Work was covered by the Plumbers’ Regulation. He was not concerned about the work methods employed on the site, nor was he troubled by a perception that the persons performing the Work were doing so in a manner that was unsafe or incompetent. The only safety concern arose from an interpretation of the Regulation, which I conclude is not likely one to be found correct. The Carpenters point out that their members have done the work frequently in the past, with no adverse consequences.”

21. The third factor considered in PCL was the prejudice to the parties if the order was or was not suspended. In the circumstances before it, the Board found that the prejudice to the Labourers if the order was not suspended was equalled by the prejudice to the Sheet Metal Workers if the order was suspended. However, in other suspension decisions, the Board determined that the prejudice to the workers forced to stop working outweighed the prejudice to the workers claiming the work, because of lost work opportunities and earnings that could not be compensated even if the appeal was successful.[30]

22. The fourth factor considered in PCL was the motives of the party making the complaint. The Board found that there was credence to the allegation that the Sheet Metal Workers filed the complaint not because of a concern with the health and safety of the workers, but as a “jurisdictional dispute in disguise”.31 The Board held that this was an appropriate consideration weighing in favour of suspending the order.32 As in other decisions, the Board did not allow a party to use the trade regulation regime to do an end run around its jurisdictional dispute resolution system.[33]

23. The PCL case was subsequently adjudicated on its merits, and a decision was rendered on August 16, 2010.[34] The issue to be decided was whether the demolition work amounted to “the handling and dismantling of sheet metal” within the meaning of Regulation 1077 and was therefore restricted to authorized sheet metal workers under Regulation 572/99.

24. The Board began its analysis by noting, appropriately, that the terms “handle” and “dismantle” in Regulation 1077 cannot be defined with the aid of a dictionary, but rather must be interpreted in light of regime’s purpose and in its proper context.[35] The Board discerned that the purpose of Regulation 572/99 was “to promote public health and safety by ensuring that workers have the proper and appropriate training to do certain work.” Accordingly, it found that the question to be answered in this case is whether the work in question is “work that sheet metal workers exclusively do, and more importantly must exclusively do, because of the training required to do such work correctly?”[36]

25. The Board answered this question by properly characterizing “the work that the construction labourers actually did in connection with this part of the project,” which it found “was limited to taking down scrap metals and moving them out of the building so they could be disposed of appropriately.”[37] The Board found that this work could have had no impact on an existing HVAC system, as prior to the commencement of this work, the portions of the HVAC system to be removed had been identified, isolated, capped off and decommissioned by certified sheet metal workers. Thus, the work in question did not require any of the specialized and exclusive training that sheet metal workers have in order for it to be performed correctly and/or safely. To the contrary, the Board noted “this is work of a type or nature which construction labourers regularly perform, on a daily basis, across in [sic] this Province.”[3]8

26. The Board concluded that the work in question did not constitute the handling and dismantling of sheet metal within the meaning of Regulation 1077. As such, the work in question was not reserved exclusively for sheet metal workers, and the orders were set aside.[39]

27. PCL is consistent with a line of jurisprudence, decided before and after it, in which the Board applied a purposive and contextual approach to appeals of orders issued under Regulation 572/99.[40] The overall approach to the interpretation of TQAA regulations has been summarized by the Board as follows:[41]

The interpretation of one or more regulations must be a functional one. That is, it is not sufficient to find that a general term found in one or more regulations refers to specific work simply because a general dictionary definition of the term in the regulation could lead to that result. The words in the definition of a trade must be read in the context of the nature of the work that is performed by each trade and the purpose of the TQAA: the provision of training so that apprentices and journeypersons will acquire an integrated set of skills necessary to perform the work defined in the regulation.

28. In conducting the required purposive and contextual analysis, the Board has acknowledged the inevitable overlap in the skills required for the various trades to carry out their work safely. To address this overlap in a manner that makes practical sense, the Board has adopted the following principle, which was developed in the context of its jurisdictional dispute jurisprudence:[42]

If work is found in the definition of two different trades, even if one of them is compulsory and the other is not, members of either trade can perform the work.

2. Inspectors Provided with Oversight and Guidance

29. Under the TQAA regime, the inspectors were employed by the Ministry of Labour (MOL), which is the same ministry that oversees the Board. In enforcing the provisions of the TQAA, inspectors from the MOL were guided by policies, which codified critical aspects of the Board’s jurisprudence, thereby helping to ensure that their powers were exercised in a manner that was reasonable and practical.

30. For one, MOL inspectors were cautioned to distinguish between bona fide OHSA/TQAA-based complaints and what were in essence jurisdictional disputes:[43]

When determining whether a contravention falls under OTAB or MOL, the inspector should determine whether the concern is a bona fide health and safety concern or whether this is in reality an economic or political dispute. A common example of the latter would be two trades “squabbling” because each wants to be awarded work on a contract (i.e. jurisdictional dispute).

Clarification is also necessary whether an individual contravention is of a TQAA nature or is alleged as a TQAA/OTAB issue.

Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades … ie, Sprinkler Vs. Plumber/Fitter. We must recognize that either trade could legitimately do this job. If there is a dispute in that regard it should be dealt with as a jurisdictional matter.

31. The guidelines recognized the existence of overlap in the TQAA’s compulsory trade descriptions, and instructed inspectors to deal with overlap in the following manner: [44]

Each trade consists of a number of tasks. When a task is contained in only one compulsory trade then only a person certified or registered as an apprentice in that trade may perform the task. When a task is contained in two or more compulsory trades then persons certified or registered as an apprentice in any of the compulsory trades that contain the task may perform that task. When a task is contained in a compulsory trade and a voluntary trade then any person may perform the task without having to be certified or registered as an apprentice in any trade.

32. There were also guidelines setting out specific exemptions.[45] One illustration of the application of those is a MOL Inspector’s Field Visit Report dated May 3, 2012. The inspection related to allegations that construction labourers were performing work falling within the electrician’s scope of practice, as delineated in TQAA Regulation 1051. The work in question involved digging a trench to install plastic conduit lines for traffic services, which was arguably captured by Regulation 1051’s broad language. The inspector nonetheless found that “there is an exception wherein the work described above may be performed by another skill set besides the 309A [electrician]: ‘Person performing electrical work outside a building or structure on power lines and equipment supplying electricity to a consumer and on street, highway, traffic lighting equipment (TQAA Regulation 1067 Lineworker).’”

33. MOL inspectors also had the mandate, training and expertise necessary to interpret the TQAA restrictions in light of their broader safety purpose and in the context of the actual work performed. For example, in the Field Visit Report described in the paragraph above, the inspector provided a second reason for his decision not to issue a stop work order, namely that “no wires were being installed at the time of inspection” and that “the work plan for the project includes a sub-contract to a qualified construction electrician to install the wires into the conduit and perform the electrical connections when the project reaches that phase.” In other words, since the labourers in question were not handling live wires or electricity, there was no real safety concern associated with the actual work that was carried out, even though the work was arguably captured by a mechanical interpretation of Regulation 1051.

3. Board Considers Scope of Practice Restrictions in Jurisdictional Disputes

34. The Board has addressed the trades regime in adjudicating various issues under the LRA,[46] but most commonly in jurisdictional disputes, which is the focus of this section.

35. This discussion below will proceed in four stages. First, we will set out the history and present operation of the jurisdictional dispute resolution system, with a view to illustrating the role of the jurisdictional dispute resolution system in preserving industrial peace and stability in this province’s construction industry. Second, we will demonstrate how the Board has considered compulsory trades restrictions as a factor in resolving jurisdictional disputes. Third, we will demonstrate that the jurisdictional dispute resolution system has evolved consistently with the broader purposes of the trades regulation regime. Fourth, we will draw some preliminary conclusions about the role that the Board’s jurisdictional dispute jurisprudence ought to play in the design and operation of OCTAA.

(c) Jurisdictional Dispute Resolution System Essential to Labour Relations Peace and Stability

36. A jurisdictional dispute arises when two unions assert bargaining rights with respect to the same work. While a jurisdictional dispute can arise in any industry, they come up most frequently on construction sites, where members of multiple trade and craft unions apply overlapping skills on a single project. Without a process for resolving jurisdictional disputes that is expeditious, effective and fair, jurisdictional disputes would imperil industrial relations peace and economic stability, especially in the construction industry. As the Board noted over 35 years ago in Eaman Riggs Limited:[47]

In the Board's experience nothing has a greater disruptive effect on amicable relations between the craft trade unions and the employers in the construction industry than jurisdictional disputes over which craft is to perform certain work. These craft trade unions each lay claim to wide areas of work. While there is seldom a dispute over most of the work which each craft trade union claims, there are peripheral areas where disputes arise between two or more craft trade unions. The introduction of new methods of construction, prefabrication of units and systems, the introduction of entirely new materials and the substitution of new materials for old materials accentuate claims for work and cause jurisdictional claims in constitutions to be recast. On many occasions such jurisdictional claims are included in collective agreements. Craft unions such as the United Brotherhood of Carpenters and Joiners of America. for example, where they succeed in incorporating jurisdictional clauses in collective agreements with general or prime contractors, enjoy an advantage in protecting the work jurisdiction which they claim.

37. The Board was given statutory power to resolve jurisdictional conflict in 1966. This reflects a legislative policy that disputes over work jurisdiction should be resolved through the Board’s processes and not through economic conflict.[48]

38. The jurisdictional dispute resolution system has evolved to earn the confidence of the labour relations community, thereby ensuring the fulfillment of its purpose. There are at least three aspects of the system that are critical to its successful operation.

39. First, the system strives to be expeditious. The Board recognizes that “expedition and certainty are the cornerstones of an effective jurisdictional dispute system.”[49] This holds most true in the construction industry, where the work forming the subject of the dispute is inherently time-limited. There is often little be gained from an adjudication occurring long after the disputed work is over. As such, over the years, specialized procedures have been developed to ensure that jurisdictional disputes are addressed as expeditiously and efficiently as possible, while still meeting a basic level of procedural and substantive fairness.[50]

40. In this regard, since 1993, the LRA has provided that the Board is not required to hold a hearing to determine a jurisdictional dispute,[51] but may make any interim or final order it considers appropriate after “consulting” with the parties.[52] The Board’s current practice is to decide jurisdictional disputes by way of consultation and not a hearing. A pre-consultation conference is held, followed by an exchange of briefs and a consultation. Disputes are processed expeditiously in the ordinary course, but may be further expedited at the request of a party. [53] Even within the tight timelines applicable to jurisdictional disputes, the Board will issue interim orders in appropriate cases, most often to preserve the status quo until disputes are adjudicated on their merits.[54]

41. A second critical aspect of the jurisdictional dispute resolution system is its multi-party structure. All parties affected by a jurisdictional dispute have full party status, including the employer, the incumbent union, and the union claiming the work.[55] The Board has broad remedial powers suited to the resolution of multi-party disputes, including the authority to alter bargaining unit descriptions.[56] For this reason, where a grievance raises jurisdictional issues that affect non-parties to the collective agreement (such as other unions with competing jurisdictional claims), the Board will ordinarily defer the grievance to deal with the matter under section 99, in a forum where all interested parties have the opportunity to participate.[57] The Board has described section 99’s unique “three-dimensional” nature as follows:[58]

This Board is the only forum where all of the interested parties to a jurisdictional dispute — trade unions and employers — may appear as parties. While the Board does not regard itself as a panacea for the ills of the construction industry, it is prepared to consider all aspects of a jurisdictional dispute on as broad a base as possible in the belief that regardless of whoever has precipitated a jurisdictional dispute the only way to settle such a dispute is by a determination of this Board after hearing from all of the interested parties.

…the approach of this Board is three dimensional in that it first of all determines the merits of a jurisdictional dispute in a complaint under section 81 of the Labour Relations Act before considering a grievance under a collective agreement under section 1 12a of the Labour Relations Act. The nature of the construction industry with its craft trade unions, conflicting jurisdictional claims, the sequence of work to be performed on a project and the contractual arrangements between employers requires such a three dimensional approach. The two dimensional view reveals only an untypical cross-section of a situation in industrial relations in the construction industry whereas the three dimensional view permits the two dimensional view to be considered as a part of the entire scenario of such industrial relations. This Board possesses far wider remedial powers than a board of arbitration in that, this Board may, in determining a jurisdictional dispute after hearing from all of the interested parties, alter bargaining units defined in a certificate or a collective agreement. Reference is made to section 81(15). (16), (17) and (18). In our view this Board's approach to jurisdictional disputes is more in accordance with the realities of the construction industry.

42. Finally, perhaps the most important element of the jurisdictional dispute system is the expertise of the Board itself. As noted, the Board’s powers under section 99 have existed for over half a century. In exercising these powers, it has issued literally hundreds of jurisdictional decisions. The specialized expertise it has acquired in adjudicating these disputes is beyond dispute. As the Divisional Court has recognized, the Board acts in a “doubly specialized capacity” in adjudicating jurisdictional disputes in the construction industry: not only is it an expert in the “‘dynamic, complex and specialized field’ of labour relations,” but it has also been entrusted with responsibility over the highly specific regime that governs the construction industry. [59]

43. In deciding section 99 cases on their merits, the Board typically considers the following factors: collective bargaining relationships; skills, training, health and safety; economy and efficiency; the employer’s practice; the area practice; and employer preference.[60] While the Board has broad discretion to weigh these criteria in the facts of any given case, it tends to attach significant and primary weight to the historical factor of area practice. [61] This is in keeping with the purpose of section 99, which is to preserve labour relations peace and stability.[62] The focus on area practice also permits accommodation of local practices, [63] which may in turn be shaped by geographical variations in labour supply. As well, the area practice factor is often relevant to the application of the other factors. For instance, the fact that disputed work has historically been performed by members of a particular trade within the Board area in question may indicate that the employees have the skills and training to perform the work safely, [64] as well as the capacity to perform it economically and efficiently,65 and hence in accordance with the broader public interest.

44. A vast body of jurisprudence has been generated under section 99 which provides trade unions and employers with the practical guidance needed to structure their relationships. Employers are guided by this jurisprudence in making work assignments and in estimating costs. The decisions also provide a relatively stable and predictable context from which trade unions acquire and enforce their bargaining rights.

(d) Board Considers Compulsory Trades Restrictions in Adjudicating Jurisdictional Disputes

45. In jurisdictional disputes involving members of a certified trade, compulsory trades restrictions are not infrequently raised as a reason why certain work should be assigned to one union over another.

46. The Board has typically considered compulsory trades restrictions as a relevant factor, albeit not a decisive one, in its analysis. Compulsory trades restrictions are balanced against the usual factors considered by the Board in analysing jurisdictional disputes (with area practice, as always, playing a dominant role).66 This has been the case for decades, even before Regulation 572/99 gave the Board direct adjudicative oversight over the trades regime.67 It continues to be the case under OCTAA.[68]

47. The Board’s approach to jurisdictional disputes in general, as well as its treatment of compulsory trades restrictions in the context of jurisdictional disputes, is illustrated by its two decisions in Weinmann Electric Limited. The first of these decisions, which we will refer to as Weinmann #1,[69] was decided in 2010; the second, Weinmann #2,[70] was issued recently in December 2014.

48. In Weinmann #1, the International Brotherhood of Electrical Workers (IBEW) asserted a claim to work that had been assigned to the Labourers International Union of North America, Local 1089 (“the Labourers”). The work in question was performed in connection with a new highway traffic monitoring system, and included the installation of conduit and other equipment that was then threaded and connected by members of the IBEW.

49. The Board resolved Weinmann #1 mainly in favour of IBEW. In this regard, the Board considered that a strict and technical reading of the definition of “electrician” in TQAA Regulation 1051 covered at least part of the work in dispute.[71] However, while this was a factor in the Board’s analysis, the determinative factor was that area practice supported the IBEW. The Board determined that area practice ought to be given the greatest weight in the analysis, given that the Board has long been reluctant to “’disturb what appears to be a successful and long-lived work jurisdiction’.” [72]

50. On the other hand, the Board also found that employer practice favoured the Labourers. From this it followed that Labourers had sufficient skills, ability, safety and training to perform the work, given that Labourers employed by this particular employer “had been doing this work for a long time” and had been doing so “as safely as possible.” [73] Still, these considerations were outweighed by the matter of area practice which, again, favoured the IBEW.

51. In the end, the Board made an order re-assigning most of the work in dispute to IBEW. However, the Board acknowledged the employer’s concerns that simply reassigning the work to members of the IBEW would give rise to inefficiencies.This was because Labourers were required to start a given work day by digging the trench. The PVC conduit, pull boxes and fish line would then be installed later in the day. If members of the IBEW were to be assigned that afternoon work, they would be standing idle for a portion of the morning while the trenches were being dug.[74] As such, the Board made a practical order that was “subject to considerations of efficiency.”[75] In this regard, the Board made the following comments in which it acknowledged the reality of overlap in the construction industry:[76]

100. I am hesitant to make an unrestricted order assigning the work encompassed in items 1, 2 and 3 to the IBEW without some modification. I do not propose to make an order that requires employees to stand around waiting for work that they can do. If an employee is on the job, he or she must be fully employed for the entire working day that the employer schedules. Indeed it is extremely common in multi-trade construction projects to find that, in situations where an employer has made a series of work assignments that all parties are content with, nonetheless on a day-to-day basis, Millwrights, for example, will perform work which is, strictly speaking, Iron Workers’ work for part of the day, and that Iron Workers routinely perform work that is, again strictly speaking, Millwrights’ work for portions of different days. That is what is required to get the job done even though it results in members of one trade performing work that would otherwise be performed “properly” by members of a different trade union. The unionized construction industry only works when this sort of give-and-take occurs every day, and everyone works in an efficient manner to get the job done.

101. In this case I find that the work in items 1, 2 and 3 ought to have been awarded to members of the IBEW, except in those situations where the amount of such work to be performed would occupy only a small part of that employees’ time. The Board does not expect the parties to require it to micromanage the allocation of time on every project in Sarnia. Rather the Board expects the parties to proceed with the same sort of accommodation and co-operation that characterizes most assignments of work where two trades work closely together [emphasis added].

52. It is important to note that the plain meaning of the TQAA regulation was not the definitive factor supporting the Board’s determination in Weinmann #1; as indicated, area practice determined the result. Had the area practice favoured the Labourers, the Board may well have decided the case differently. And this is precisely what occurred in a Weinmann #2, which involved a different Labourers Local (1081) performing the same kind of work in a different board area. In that case, area practice (as well as employer practice) was found to favour the Labourers,[77] so the Board confirmed the work assignment to the Labourers.[78] Although this result ran afoul of the TQAA Regulation in a strict technical sense,[79] it posed no threat to the broader purpose of the TQAA, since the Board determined, again, that Labourers had a history of performing this work and could be trained to perform it safely. To quote from the decision:[80]

45. …The work is, as noted above, within the core jurisdiction of the trade of electrician. That is not to say that only an electrician can, by law, do the work, but that this work is associated with the core of the trade. However, as long ago as K-Line Maintenance and Construction Limited, [1979] OLRB Rep. Dec. 1185, the Board commented on the convergence of the work of utility contractors and of electrical contractors. Whatever the reasons for this, the change in technology or perhaps simply the change in construction techniques, the two sets of contractors found that they were both performing the same kinds of work, although they approached the contracts from a different perspective. That is, labourers have been doing this work for some time.

46. The photographs contained in the IBEW’s brief that demonstrate that one or more persons who are members of the Labourers’ Union have improperly installed a conduit or a fish line is not probative of anything. It is likely true that, if one were to take a group of newly licensed electricians and newly employed labourers, the electricians would likely be more skilful in the performance of the work. That is not the test. If UIL has been able to assemble a group of persons who are members of the Labourers’ Union, and is able to remain profitable while employing them and replacing and perhaps training them over time, then the question of skill is not an issue that is of any significance in this jurisdictional dispute.

(e) Jurisdictional Dispute Jurisprudence has Evolved Consistently with Trades Regulation Regime

53. As noted, compulsory trades restrictions under the TQAA are considered as a factor, but not a decisive factor, in the Board’s analysis of jurisdictional disputes. The Board has not permitted TQAA definitions to determine work jurisdiction for good reason. The trades regulation regime and the jurisdictional dispute resolution system serve two distinct purposes and functions: the trades regime aims to ensure that tradespeople are appropriately trained for the work they perform;[81] the jurisdictional dispute regime strives to resolve competing claims to work jurisdiction among trade unions. A claim to exclusivity under the trades regime raises questions about the qualification to perform the work; a claim to work jurisdiction under s. 99 raises a broader set of questions centred mainly around area practice. It is appropriate for each regime to remain analytically and practically distinct.

54. Moreover, as the Board acknowledged in adjudicating disputes under Regulation 572/99, the tasks described in the compulsory trade definitions are not necessarily exclusive to any particular trade. To the contrary, there is overlap in the definitions of the various compulsory and voluntary trades. As the Board explained:[82]

The Board notes that many trades have work and training components that overlap one another. This is perfectly reasonable. It makes sense that plumbers, ironworkers, and other trades such as millwrights should all acquire rigging skills to further the performance of their trade. This does not grant exclusive jurisdiction over such work to any one trade. It does not mean that any one trade has a monopoly over the safe performance of any particular type of work.
If the compulsory trades definitions do not give rise to a claim of exclusivity for a trade under the TQAA, then these definitions surely cannot be relied on to resolve questions of jurisdiction under section 99.

55. Still, the Board has stressed that its jurisdictional dispute decisions should evolve more or less consistently with the trades regulation regime. As the Board stated over 25 years ago:[83]

Although it is not within the Board’s mandate to enforce the Apprenticeship Act per se, the Board is obligated to make decisions and proceed in ways which are not inconsistent with the laws of general application which are specifically directed at matters with which the Board must be concerned in the course of exercising its powers or performing its duties under the Labour Relations Act.

56. Thus, while the Board may not allow the language of the TQAA regulations to determine the result of jurisdictional disputes, it does resolve jurisdictional disputes consistently with the purposes of the trades regulation regime. In adjudicating jurisdictional disputes, the Board always considers the safety, skills and training factor, which is the main purpose of compulsory trades enforcement. Also, when the Board considers area practice, which weighs most heavily in its jurisdictional analysis, it is thereby implicitly addressing considerations of safety, skills and training: the fact that a particular category of workers have a practice of performing disputed work can indicate either that the workers in question are adequately trained to perform the work, or that specialized training is not required for the safe performance of that work. In short, the Board has been interpreting compulsory trades definitions purposively and contextually in its adjudication of jurisdictional disputes, which is precisely how these definitions must be approached.

57. Indeed, we are not aware of any case in which the Board has upheld an assignment of safety-sensitive work to a union that represents workers who are not able to perform the work safely. In cases where compulsory trades restrictions are outweighed by other considerations, it is because the work in question does not require specialized training available associated exclusively with a given compulsory trade to be performed safely. For example, in the Weinmann scenarios, the work in dispute may technically have fallen within the broad scope of practice for an electrician, but it did not involve live electricity or engage other safety considerations. Thus, the Board did not offend the purposes of the TQAA when it held that non-electrician members of the Labourers could perform the disputed work to the extent demanded by efficiency (Weinmann #1) or in full (Weinmann #2). In neither case was the work in question so hazardous or difficult that the training available exclusively to electricians was required for the safe performance of the work.[84]

(f) Conclusion Regarding Jurisdictional Disputes

58. The above discussion of the Board’s jurisdictional dispute resolution system illustrates a number of points that are germane to the redesign and operation of the trades regime.

59. First, the Board’s jurisdictional dispute resolution system is essential to the preservation of peace and stability in the construction industry. It follows that the OCTAA regime must not interfere with the jurisdictional dispute resolution system. Specifically, the OCTAA regime must not allow itself to be used to short circuit, and thus undermine, the jurisdictional dispute resolution system. It must contain safeguards to ensure that jurisdictional disputes continue to be resolved through the jurisdictional dispute resolution system, and that the trades regime continue to focus on bona fide issues of skills and training.

60. Second, the Board’s approach to resolving jurisdictional disputes is appropriately attuned to, and consistent with, the trades regulation regime in this province. Thus, the Board’s jurisdictional dispute jurisprudence should not be disregarded under OCTAA. To the contrary, it is powerful and compelling evidence of which trades have a practice of carrying out which work, where regional variations in work allocation exist, how the work is actually carried out, whether and how work has changed, where overlaps between trades exist, and where specialized training is (or is not) required to perform the work safely. These are precisely the kinds of considerations that should factor into the various determinations to be made under the OCTAA regime.

61. Third, the Board has significant and relevant expertise in interpreting the scope of the compulsory trades restrictions, in balancing those restrictions against jurisdictional considerations, and in distinguishing jurisdictional disputes from bona fide trade regulation issues. This militates strongly in favour of preserving the role of the Board as the overseeing tribunal under the OCTAA regime. No other tribunal or court has the required level of institutional knowledge.

62. As set out below, the trade restrictions in OCTAA are presently being enforced in a manner that excludes the Board and disregards the processes and decisions under section 99. This not only threatens peace and stability in the construction industry, but runs counter to the very purposes of OCTAA.

C. ENFORCEMENT UNDER OCTAA

63. A key feature of the new regime is the streamlining of enforcement through a single, self-regulating body, namely OCOT. Violations of the compulsory trades restrictions are no longer enforced as health and safety violations, but as direct violations of OCTAA.

64. OCTAA imposes a number of prohibitions in Part II of the Act, including ones that are similar to the restrictions contained in Regulation 572/99. The prohibitions most relevant for present purposes are sections 2 and 4, which read as follows:[85]

Practice, compulsory trades
2. No individual shall engage in the practice of a compulsory trade or hold himself or herself out as able to do so unless the individual holds a certificate of qualification in that trade that is not suspended or unless the individual is an apprentice in that trade and is working pursuant to a registered training agreement that is not suspended. 2009, c. 22, s. 2.

Work of compulsory trades
4. No person shall employ or otherwise engage an individual to perform work or engage in a practice that constitutes engaging in the practice of a compulsory trade unless the individual holds a certificate of qualification in that trade that is not suspended or unless the individual is an apprentice in that trade and is working pursuant to a registered training agreement that is not suspended. 2009, c. 22, s. 4.

65. Pursuant to section 91 of OCTAA, regulations may be promulgated which designate trades as compulsory trades.[86] In the regulations made to date, the compulsory trades designations [87] and definitions [88] have been essentially imported from the TQAA.

66. Section 86(1) of the Act makes it an “offence” to contravene Part II of OCTAA, which includes the compulsory trade restriction set out above. Such an offence carries a fine of up to $5,000 for a first offence and $10,000 for a subsequent offence.[89] An inspector appointed pursuant to s. 54(1) of OCTAA may charge the defendant with an offence.[90] The offence is then prosecuted under the Provincial Offences Act. The charge takes the form of a “Certificate of Offence”,[91] colloquially referred to as a “ticket”. If the defendant wishes to dispute the charge, he or she must enter a plea to this effect within the timelines set out in the Act.[92] A trial of the matter will take place before the Ontario Court of Justice (specifically before a provincial Justice of the Peace).[93]

67. This new enforcement regime suffers from a number of fundamental shortcomings, including the ones described below.

68. First, the compulsory trades restrictions remain overbroad. Under the TQAA/OHSA regime, the Board acknowledged the problem of overbreadth in the definitions at issue, and addressed it by interpreting those definitions in a purposive and contextual manner. The redesign of the trades regime presented the government with an opportunity to address this problem head-on, by revising the compulsory trade definitions that are employed for enforcement purposes. This did not happen. Instead, the overbroad definitions from the old regime have been simply imported into the new one.

69. Second, the oversight formerly provided by Board has been eliminated. Charges laid under OCTAA can only be challenged in provincial court, which lacks the expertise to interpret the compulsory trades restrictions purposively, contextually and consistently with the Board’s jurisdictional dispute jurisprudence.

70. Third, the provincial court apparently lacks jurisdiction to interpret the compulsory trades restrictions in a purposive and contextual manner. OCTAA does not provide that its compulsory trades restrictions must be interpreted in light of its broader purposes. OCTAA’s broader purposes are not even clearly identified. This creates the risk, and indeed the likelihood, that the trades restrictions will be applied mechanically, without taking into account the realities of construction work or the Board’s vast jurisprudence on jurisdictional disputes. This presents an obvious problem given the overbreadth of the compulsory trade definitions. However, even if the compulsory trade definitions were to be revised, they would nonetheless still be words on a page that must be interpreted in their real world context.

71. Fourth, trade unions have no status whatsoever in the provincial court proceedings. Status is reserved for the parties who have been charged with OCTAA offences, who can only be the employer or an individual employee.[94] This creates grave problems of fairness for the trade unions whose interests are clearly affected by charges involving their members. It also contributes to the risk that the compulsory trades restrictions will be interpreted rigidly and divorced from their proper context, as it is typically only trade unions who have the motivation to challenge the charges in the first place, the resources to mount an effective challenge, and the knowledge and perspective to provide the court with relevant contextual evidence. Indeed, most of the litigation under Regulation 572/99 benefited from the active participation of trade unions.

72. Fifth, the provincial court lacks jurisdiction to stay OCTAA charges pending adjudication on the merits, which can be scheduled many months after the charges are laid. This renders the trades regulation system vulnerable to abuse by trade unions seeking to obtain jurisdictional advantages that could never be achieved through the jurisdictional dispute resolution system. A trade union can now circumvent section 99 of the OLRA, or undo the effects of a jurisdictional decision, simply by convincing an OCOT inspector to lay charges under section 4 of OCTAA. This would likely cause the employer to immediately halt or reassign the work in order to avoid further charges. This disruption to the status quo could be end up being determinative of the work assignment, as the provincial court is unlikely to render a decision in the matter, or even hear the matter, until after the construction project is complete. There is no practical and accessible mechanism through which those affected by the charges can seek to preserve the status quo until the matter is decided.

73. Sixth, OCOT inspectors lack the appearance of neutrality and are not provided with appropriate oversight and guidance. It is not clear on what basis OCOT inspectors are hired, but it appears that they have been disproportionately drawn from the compulsory trades. This raises the appearance of bias, as the inspectors stand to gain or lose from how they exercise their discretion. Moreover, we are not aware of whether OCOT inspectors have been provided with appropriate training and guidance as to how to identify the trade restrictions contextually and purposively, how to address inevitable overlaps between the trades, and how to guard against abuses of the system by identifying complaints that are essentially jurisdictional in nature.

74. An example that illustrates the shortcomings inherent in the OCTAA enforcement regime took place in April of 2014, immediately after OCTAA took effect, when an electrical contractor, Stacey Electric, was charged with offences under OCTAA.

75. The charges related to some of the work involved in the installation of street and tunnel lights on the Herb Gray Parkway in Windsor. The work in question included the installation of conduit, cable tray and ground rods. This is the kind of work that has been carried out by members of the Labourers for decades both in the Windsor area and across the province. The work did not involve installing electrical cables or working with live electricity; that kind of work was carried out by certified electricians.

76. The work in question fell within the scope of the Windsor Essex Parkway Collective Agreement, which had been negotiated by Local 625. That Collective Agreement bound all subcontractors on the project including Stacey. Local 625 then reached a jurisdictional agreement with IBEW that permitted IBEW electricians to perform certain electrical work on the project in situations where an IBEW-represented company is awarded the work.

77. Stacey’s work on the Parkway proceeded in accordance with the jurisdictional agreement and without incident. Unexpectedly, a College inspector arrived at the site and claimed that labourers employed by Stacey were performing electrician’s work. The inspector proceeded to issue 11 tickets over the course of the next several days, each of which charged Stacey with committing the offence of “employing or otherwise engaging individual to engage in compulsory trade – without certificate of qualification that is not suspended, contrary to Ontario College of Trades and Apprenticeship Act, 2009 [OCTAA]”. Each ticket carried a fine of $360.

78. Although the inspector did not particularize the charges, they presumably related to the SoP for an “electrician – construction and maintenance,” which is as follows:.

Electrician — construction and maintenance
11. (1) The scope of practice for the trade of electrician — construction and maintenance includes the following:

1. Laying out, assembling, installing, repairing, maintaining, connecting or testing electrical fixtures, apparatus, control equipment and wiring for systems of alarm, communication, light, heat or power in buildings or other structures.
2. Planning proposed installations from blueprints, sketches or specifications and installing panel boards, switch boxes, pull boxes and other related electrical devices.
3. Measuring, cutting, threading, bending, assembling and installing conduits and other types of electrical conductor enclosures that connect panels, boxes, outlets and other related electrical devices.
4. Installing brackets, hangers or equipment for supporting electrical equipment.
5. Installing in or drawing electrical conductors through conductor enclosures.
6. Preparing conductors for splicing of electrical connections, securing conductor connections by soldering or other mechanical means and reinsulating and protecting conductor connections.
7. Testing electrical equipment for proper function. O. Reg. 275/11, s. 11 (1).

79. The work forming the subject of the dispute presumably related to the installation of conduit, cable trays and ground rods, which, on a mechanical and decontextualized reading of the regulation, arguably falls within items 3, 4 or 6.

80. The inspector threatened to issue more tickets, with higher fines, unless and until the alleged offence ceased. As a result, Stacey was forced to stop assigning the work in question to its labourers.

81. Stacey opted to defend itself by pleading not guilty to the charges. Local 625 had no status or standing to contest the charges or to participate in the proceedings, despite its obvious interest in the matters at issue. Had Stacey opted to enter a guilty plea, Local 625 would have been left without any recourse to defend its work and the livelihoods of its members.

82. The provincial court scheduled the hearing of the charges for September 2014 – approximately five months after the charges were laid. In the interim, Stacey was placed in an impossible bind: comply with its OCTAA obligations and breach its contractual obligations to Local 625, or comply with its contractual obligations and be charged with an indefinite series of provincial offences, with the possibility of fines increasing to $10,000 per infraction. There was no access to a stay procedure to address this problem on an interim basis. Fortunately, the parties were able to work out a partial solution in which Stacey hired electricians represented by Local 625 to perform the work in dispute. In this way, Stacey was able to proceed with its work without incurring liability under the Local 625 collective agreement. However, significant prejudice was caused to the construction labourers who were forced out of work that they were qualified to perform. As well, this kind of solution arguably would not have been available in the ICI sector, where Labourers’ bargaining rights extend only to construction labourers and not employees in the compulsory trades.

83. The charges against Stacey were ultimately stayed by a court order placing Stacey into receivership (this was for reasons unrelated to the OCTAA charges). However, had the hearing proceeded, it was not clear that Stacey would have been able to mount an effective defence, as the provincial court lacked the expertise and the express jurisdiction to analyze the charges purposively, contextually and consistently with the Board’s jurisprudence on jurisdictional disputes. It is to be noted that in Weinmann, the Board found that non-electrician members of the Labourers had the experience necessary to perform precisely this kind of work safely, even though the work in question technically fell within the scope of practice of the compulsory trade of electrician. There was a risk that the provincial court would have disregarded this jurisprudence in favour of a mechanical and decontextualized interpretation of the electrician’s SoP.

84. Moreover, the provincial court lacked the expertise and the express jurisdiction to consider whether the motives behind the complaint and/or the prosecution were jurisdictional in nature, specifically whether the OCTAA regime was being abused by the IBEW to defeat the Labourers’ bargaining rights and to circumvent the jurisdictional agreement that the two unions had negotiated.

85. While the Stacey charges have been temporarily resolved, the Stacey scenario threatens to repeat itself unless OCTAA’s enforcement regime is remedied on an urgent basis. There are hundreds of construction employers in Ontario who employ thousands of workers to do work that could easily attract the attention of OCOT inspectors, on a mechanical and/or biased reading of the compulsory trade restrictions.

86. Furthermore, more trades have applied for compulsory status, on the basis of overbroad and outdated SoPs, which will increase the potential for more charges
.
D. CONCULSIONS: RESTORING LEGITIMACY TO THE REGIME

87. As detailed in the previous system, OCTAA’s enforcement regime suffers from some serious shortcomings that threaten the very stability of the industry that it purports to regulate. However, we believe that these problems can be fixed, and that the fixes are not difficult. Indeed, the templates for the solutions can be found in the TQAA regime itself. Specifically, adjudicative oversight over the compulsory trades restrictions ought to be restored to the Board, which must be accorded the express jurisdiction to interpret the restrictions purposively, contextually and consistently with its own jurisdictional dispute jurisprudence. Affected trade unions must be given standing and full participatory rights. Safeguards must be built into the system to protect it from jurisdictional abuse; this would have to include, at the very least, suspension powers to protect the status quo pending adjudication. OCOT inspectors must be given appropriate oversight and guidance to ensure that they are exercising their authority rationally and fairly. These and other proposed solutions are detailed extensively in the submission that accompanies this paper.

----------------------------------------------------------------------------------------------------------------------------------------------
NOTES

1 Ontario College of Trades and Apprenticeship Act, 2009, S.O. 1990, C. 22 [OCTAA]

2 Trades Qualification and Apprenticeship Act, R.S.O. 1990, C. T17 (repealed) [TQAA]

3 Apprenticeship and Certification Act, S.O. 1998, C. 22 (repealed) [ACA]

4 Since most of the construction trades were regulated by the TQAA and not the ACA, the previous regime will be referred to in this paper simply as the “TQAA regime.”

5 Occupational Health and Safety Act, R.S.O. c. O.1 [OHSA]

6 Labour Relations Act, 1995, S.O. 1995, c. 1 [LRA], s. 99

7 Provincial Offences Act, R.S.O. 1990 C. P3

8 Section 10(1) of the TQAA empowered the Lieutenant Governor in Council to designate any trade as a certified trade for the purposes of the Act. As of April 8, 2013, when the TQAA was repealed, some 20 trades were certified.

9 TQAA, ss. 9, 10(2) and 10(3)

10 For example, s. 12 of the General Carpenter’s Regulation, R.R.O. 1990, Reg. 1056, provided as follows:

12. (1) Section 9 and subsection 10 (2) of the Act do not apply to any person who works or is employed in the certified trade.
(2) Subsection 10 (3) of the Act does not apply to an employer in the certified trade.

11 These included: Electrician - Construction and Maintenance (Reg. 1051); Electrician - Domestic and Rural (Reg. 1051); Sheet Metal Worker (Reg. 1077); Steamfitter (Reg. 1079); Plumber (Reg. 1073) Hoisting Engineer - Mobile Crane Operator 1 (Reg. 1060); Hoisting Engineer - Mobile Crane Operator 2 (Reg. 1060); Hoisting Engineer - Tower Crane Operator (Reg. 1060); Refrigeration and Air Conditioning Systems Mechanic (Reg. 75/05); and Residential Air Conditioning Systems Mechanic (Reg. 75/05).

12 TQAA, s. 24; Provincial Offences Act, R.S.O. 1990, C. P. 33 [POA], Part II

13 Training Requirements for Certain Skill Sets and Trades, O. Reg. 572/99 (“Regulation 572/99”).

14 Regulation 572/99, s. 3

15 OHSA, Part VIII

16 However, in one instance involving a non-unionized labourer, an alleged violation of Regulation 572/99 was prosecuted under part IX of OHSA (Offences and Penalties) rather than being enforced in the usual manner under part VIII (R. v. Mayfair Electric Ltd., 2010 ONCJ 203 (CanLII)).

17 OHSA, ss. 54 and 57

18 OHSA, s. 61

19 OHSA, s. 61(1)

20 OHSA, s. 61(2)

21 OHSA, ss. 61(3), 61(3.4)-(3.8), 61(3.13), 61(4), 61(6)-(8)

22 OHSA, s. 61(3.8)

23 OHSA, s. 61(7)

24 Sheet Metal Worker Regulation, R.R.O. 1990, Regulation 1077

25 PCL Constructors Canada Inc., 2009 CanLII 2411 (ONLRB) [PCL Suspension Decision]. The Board also suspended orders issued under Regulation 572/99 in other reported cases: Paul Daoust Construction Canada Ltd., 2001 CanLII 18679 (ON LRB) [“Paul Daoust”]; Ellis-Don Corporation, 2010 CanLII 11278 (ON LRB) [Ellis-Don #1 Suspension Decision”]; Action Group Inc. 2010 CanLII 17736 (ON LRB) [“Action Group Suspension Decision”]; Ellis-Don Corporation, 2013 CanLII 20287 (ON LRB) [“Ellis-Don #2”]. In some cases, the Board declined to suspend the order: The On-Site Group Inc, 2002 CanLII 26354 (ON LRB) [“On-Site”] and Peaks General Contractor Inc, (2004) CanLII 9769 (ON LRB) [“Peaks”].

26 PCL Suspension Decision para 9-12

27 PCL Suspension Decision para 13.

28 PCL Suspension Decision para 14

29 Action Group Suspension Decision (para 21). See also: Ellis-Don #1 Suspension Decision para 5 and 31 and Ellis-Don #2 para 6-7, 8, 12. Where the Board has declined to suspend an order for safety reasons, it has been on the basis of an independent analysis of risk and not the mere fact of the breach (On-Site para 6 and 10; Peaks para 4 and 8).

30 Ellis-Don #1 Suspension Decision para 34 and Ellis-Don #2 para 16

31 PCL Suspension Decision para 16

32 PCL Suspension Decision para 16 and para 18. The Board found this factor to be at play, and gave weight to it, in other applications for suspension that it decided: Paul Daoust para 10; Ellis-Don #1 Suspension Decision para 25; Action Group Inc. Suspension Decision para 20; Ellis-Don #2 para 13

33 Paul Daoust para 10; Ellis-Don #1 Suspension Decision para 25; Ellis-Don #2 para 13.

34 PCL Constructors Canada Inc., 2010 CanLII 26852 (ON LRB) (PCL Merits Decision).

35 PCL Merits Decision para 24 and para 27

36 PCL Merits Decision para 32, para 35, para 37. See also: Gil & Sons para 34

37 PCL Merits Decision para 37

38 PCL Merits Decision para 37

39 PCL Merits Decision para 39

40 Other appeals decided on their merits include: Buttcon Limited, 2000 CanLII 13479 (ON LRB) (“Buttcon”); Action Group Inc., 2010 CanLII 17736 (ON LRB) (“Action Group Merits Decision); Ellis-Don Corporation, 2011 CanLII 48940 (ON LRB) (“Ellis-Don #1 Merits Decision); Gil & Sons Limited, 2012 CanLII 17123 (ON LRB) (“Gil & Sons”); Donald Construction Ltd, (2005) CanLII 40199 [“Donald”]; Schlumberger Canada Limited, 2000 CanLII 13224 (ON LRB) [“Schlumberger”]

41 Action Group Merits Decision para 11

42 Ibid. The jurisdictional dispute decisions from which this principle was borrowed include: E.S. Fox Limited, [1989] OLRB Rep. July 738 [“E.S. Fox”]; TESC Contracting Company Limited, 2008 CanLII 37561 (ON LRB) [“TESC”] and Lockerbie and Hole Eastern Inc./Adam Clark Company Limited (2008) CanLII 37561 (ON LRB) [“Lockerbie”]

43 July 18, 1994 Ministry of Labour Policy regarding the Trades Qualification and Apprenticeship Act, as quoted in Buttcon, 2000 CanLII 13479 (ON LRB) para 5 and Paul Daoust Construction Canada Ltd., 2001 CanLII 18679 (ON LRB) para 7

44 Ibid.

45 “Trades Qualification and Apprenticeship Act, R.S.O. 1990, Apprenticeship and Certification Act, 1998, General Descriptions of Compulsory Trades and Restricted Skill Sets and Exemptions” as referenced in Field Visit Report, OHS Field Visit No. 02820FJGT302, May 3, 2012

46 For example, the Board has held that the provisions of the TQAA do not prescribe the composition of a craft bargaining unit and voting constituency for the purposes of a certification application under the Labour Relations Act. Rather, an individual’s status in a craft bargaining unit is determined on the basis of that individual’s work functions on the date of the application, regardless of whether they hold a valid certificate of qualification or contract of apprenticeship with respect to the work in question. This is not to say, however, that an individual’s status under the TQAA is irrelevant to their status under the LRA: the fact that an individual is certified to perform the work of a compulsory trade constitutes evidence that may help to characterize their work on the application date (Quadracon, 2000 CanLII 7816 (ON LRB) para 104-125).

47 Eaman Riggs Limited, 1978 CanLII 540 (ON LRB) [“Eaman Riggs”] para 34

48 Sack and Mitchell, Ontario Labour Relations Board Law and Practice, 3rd edition (Toronto: Butterworths, 1997) (looseleaf) [“Sack and Mitchell”] para 7.1 and 7.2

49 John Hayman and Sons Co. Ltd. v. Labourers' International Union of North America, Local 1059, 2005 CanLII 25506 (ON LRB) para 35

50 In 1993, the OLRA was amended to give the Board the power to resolve any matter following consultation with the parties. The Rules were also amended to require parties to file detailed briefs with their application and response under s. 99, and, where appropriate, to permit the Board to decide the application without an oral hearing. The latter amendment to the Rules was codified in the Act itself in 1995 (Sack & Mitchell para 7.5-7.6).

51 LRA, s. 99(3)

52 LRA, s. 99(5) and (6)

53 Sack & Mitchell para 7.7-7.9.14; OLRB Rules of Procedure, Rule 28; OLRB Information Bulletin #25: Jurisdictional Disputes in the Construction Industry

54 Sack & Mitchell para 7.11

55 LRA, s. 99(1); Sack & Mitchell para 7.10

56 LRA, ss. 99(5), (7)-(9)

57 Sack & Mitchell para 7.14-7.15

58 Eaman Riggs para 32-33

59 International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers, 2007 CanLII 65617 (ON SCDC) para 47

60 Sack & Mitchell para 7.36

61 Electrical Power Systems Construction Association, 1992 CanLII 6371 (ON LRB) para 95; Weinmann Electric Limited, 2010 CanLII 71126 (ON LRB) para 93 [“Weinmann #1]

62 TESC para 39

63 Black & McDonald Limited, 2013 CanLII 76431 (ON LRB) [“Black & McDonald”] para 52

64 Black & McDonald para 65

65 Bruce Power LP, 2006 CanLII 33923 (ON LRB) [“Bruce Power”] para 51

66 See, for example, Industrial Trade Solutions, 2014 CanLII 26330 (ON LRB) [“Industrial State”]; B.C. High Voltage Systems Ltd., 2012 CanLII 1131 (ON LRB) [“B.C. High Voltage”]; TESC; Comstock Canada Ltd., 2006 CanLII 27569 (ON LRB) [“Comstock”]; Bruce Power; Alberici Constructors Limited, 2005 CanLII 12840 (ON LRB) [“Alberici”]; E.S. Fox

67 See, for example, E.S. Fox

68 See, for example, Industrial Trade para 109, Weinmann #2 para 10, Black & MacDonald para 21

69 Weinmann Electric Ltd., 2010 CanLII 71126 (ON LRB) [“Weinmann #1”]

70 Weinmann Electric Ltd., 2014 CanLII 80647 (ON LRB) [“Weinmann #2”]

71 Weinmann #1 para 41

72 Weinmann #1 para 95 (quoting Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143 para 12-13)

73 Weinmann #1 para 48 and 86

74 Weinmann #1 para 89

75 Weinmann #1 para 102

76 Weinmann #1 para 100-101

77 Weinmann #2 para 44

78 Weinmann #2 para 51

79 Weinmann #2 para 10

80 Weinmann #2 para 45-46

81 Comstock para 24; TESC para 32

82 Bruce Power para 30-31; E.S. Fox para 13; TESC para 33-34; Comstock para 24; Lockerbie para 55; B.C. High Voltage para 74-76. Note that some of the comments in these decisions relate to the relevance of training schedules to a claim for exclusivity under TQAA; this particular issue is not material to the present discussion. What is relevant is the Board’s repeated determination that not all of the tasks listed in the compulsory trade descriptions are exclusive to the trade.

83 Ibid para 8.

84 See also Bruce Power LP para 32

85 OCTAA, s. 4

86 OCTAA, s. 91;

87 Ontario Regulation 175/11, s. 2(5))

88 Ontario Regulation 275/11

89 OCTAA, s. 86(1)

90 OCTAA, s. 54(1)

91 Provincial Offences Act, Part I

92 Provincial Offences Act, ss. 5, 9

93 Provincial Offences Act, ss. 1(1), 5

94 OCTAA, Part II

 

APPENDIX G - Enforcement of Non-Members Among Regulated Professions in Ontario

Colleges and associations given jurisdiction over particular professions are typically
limited to regulating their own members. As James T. Casey notes in The Regulation of
Professions in Canada,

Legislation typically gives professional organizations jurisdiction
over its members with respect to charges of professional
misconduct. This type of jurisdiction ought not to be confused with
jurisdiction over non-members practising without a licence. Some
professional organizations have been expressly delegated
additional powers by the egislature to seek injunctive relief against
non-members to stop unauthorized practice.[1]

Almost all the professional regulatory bodies in Ontario have been granted, through their enacting statutes, the power to investigate and sanction their members for professional misconduct, incapacity, and/or incompetence. These powers of investigation are generally accompanied by considerable powers of entry, search and seizure. These colleges typically have their own investigators that are tasked with ensuring members comply with their statutory duties and limitations. The legislative provisions creating the various investigators' roles specifically state that they are intended to investigate and enforce compliance against members. The Ontario College of Trades, like most of the other regulated professions, has investigators to fulfil that role.

However, unlike the other regulated professions, OCOT has been granted a second enforcement function. Pursuant to s. 54 of the OCTAA, OCOT can appoint inspectors for the purpose of determining compliance with prohibitions on the practice of compulsory trades and use of titles, among others. These inspectors have similar powers of search and entry as typical college investigators. No other college or association has such a policing function, which effectively gives OCOT jurisdiction over individuals that are not its members.

This type of invasive oversight of non-members is not a task that professional colleges
and association in Ontario are typically authorized to undertake. As with OCTAA, the
legislation pertaining to almost all other regulated professions in Ontario makes it a
provincial offence to either practice the regulated profession, use the profession's titles,
and/or hold oneself out as a regulated professional while not a member of the
applicable college/association. The various colleges and associations have taken
diverse approaches to the issue of unauthorized practice of their professions. The
Ontario Association of Architects issues cease and desist letters and, if not successful,
seeks to have unauthorized practitioners prosecuted.[2] However, it cannot itself issue provincial offence notices. Similarly the Ontario College of Teachers follows a process
that starts with sending a letter of warning, issuing a cease and desist order and, finally,
pursuing legal sanctions.[3]Similarly, it cannot issue provincial offence notices itself.
Several other colleges and associations follow an analogous procedure in dealing with
non-members.[4]

Some colleges acknowledge their jurisdictional limitations. The Ontario College of
Social Workers and Social Service Workers notes that " Generally, the College only has
jurisdiction to investigate written complaints relating to the conduct of a member of the
College."[5] Similarly, the Ontario Professional Foresters Associations notes that it has
limited powers when it receives complaints about unregistered persons,
Upon receiving information relating to possible unauthorized practice or
other offences, OPFA will have to investigate to obtain the evidence
needed for a prosecution. Since the Act does not empower OPFA to
investigate non-members, evidence must be obtained from willing
people. If cooperation is not forthcoming, there are search warrant
provisions under the Provincial Offences Act which can be used to obtain
evidence, but evidence obtained in this manner can only be used in a
prosecution and not for a civil proceeding such as a restraining order.[6]

The Human Resources Professionals Association also makes it clear that it has limited
power over non-members:

HRPA has authority over the conduct of its members and can only
investigate complaints against members. Complaints against nonmembers
must be directed to authorities other than HRPA[7]

It also appears that most colleges and associations only investigate after receiving a
complaint. Their investigation and sanctioning of non-members is complaints driven.
The only regulatory body, other than the College of Trades, that appears to be proactive
in this regard is the Professional Engineers of Ontario who scan the Yellow
Pages and classifieds, but admit most investigations are the result of complaints. [8]
As such, it is clear that no other professional regulatory body has the same extensive
powers to investigate and penalize non-members, issue provincial offence tickets, or enter or search their property at will, as the College of Trades does. This aggressive
policing of unauthorized practitioners is out of line with the regulation of professions that
hold significantly more public interest than the trades, such as doctors, surgeons and
nurses.

NOTES

1 The Regulation of Professions in Canada at p. 17-1

2 http://www.oaa.on.ca/the%20oaa/regulatory%20information/act%20enforcement

3 http://www.oct.ca/
/media/PDF/Professional%20Designation%20Brochures/OCT_member_guide_e.pdf

4 College of Veterinarians of Ontario, Law Society of Upper Canada, College of Dietitians of Ontario,
College of Physicians and Surgeons of Ontario,

5 http://www.ocswssw.org/en/cd_complaints.htm

6 https://secure.opfa.ca/regulation-enforcement/enforcement/unauthorized-practice

7 http://www.hrpa.ca/RegulationandHRDesignations/Pages/Complaints-and-Discipline.aspx

8 http://www.peo.on.ca/index.php?ci_id=1824&la_id=1