Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-85

Name of organisation making submission: DR-85 Ontario College of Trades Heavy Equipment Operator Trade Board

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

We, as the Trade Board tasked with overseeing issues related to the regulation of Heavy Equipment Operators(Excavators, Dozers, TLBs, Concrete Pumps) on construction sites in Ontario, understand that all persons in Ontario have an interest in such equipment operation being performed in a way that is safe and efficient above all, and which acts to the benefit of construction workers, the general public, and the entire Ontario economy.

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

When the Heavy Equipment Trade Board (Heavy ETB) makes decisions, we keep in mind that we are tasked with protecting not only those who perform and make a living related to the work of our trade but also those who contract for the work, those who live and work in the vicinity of work, and those who live in, work in, drive on, any of the completed construction projects in Ontario. Owners and users of the construction industry’s products have an interest in high quality construction that is produced efficiently. Properly trained skilled tradespersons play a central role in meeting this public interest. We believe protecting these diverse groups is our mandate, and that these groups are the people the College should serve.

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

Where interests diverge, the deciding factor should be public and worker safety. All other considerations are secondary. To make informed decisions, especially when interests diverge, Trade Boards and others need to have access to impartial and expert advice and evidence on worker and public safety issues that are relevant to the specific trades.

4. Is the College currently protecting the public interest?

The College has made considerable progress. The College has set standards of practice, and begun regulating apprenticeship programs. Criteria and procedures have been established for reviewing ratios and the classification of trades. The College has successfully completed a full cycle of ratio reviews for the construction trades. Enforcement capabilities are being developed. More can and should be done to enable the College to better protect the public interest, and this may involve streamlining and improving the classification review process and clarifying policy on enforcement.

5. How should the College advance the public interest?

The College should advance the public interest by ensuring that the tools it uses, including training standards and scopes of practice are current and relevant to industry needs. The College should advance the public interest by developing a way of conducting classifications reviews which is transparent, unbiased, and based on a strong public and worker safety test. The College should advance the public interest by developing an enforcement policy which ensures that inherently dangerous tasks, often those included in the scopes of practice of compulsory trades, are not done by people with no training. Finally, the College should advance the public interest by developing a communications strategy that makes sure its plans and aspiration are shared with the public, with the high schools and community colleges which are the source of future skilled tradespersons, and with the people of the construction industry.

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.

SoPs are abbreviated statements of the tasks that operators in our trades commonly perform and which employers and the public expect a person in that trade to be competent to perform. SoPs are the basis for the College of Trade’s regulatory functions regarding ratios, classification, and enforcement. However, SoPs do not drive training in our trades. Training is based on the more detailed Training Standards. However, it is important that the SoPs be consistent with our Training Standards.

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

This may be true of many trades but the nature of the work of those practicing the Heavy Equipment Operator trade is less easily subdivided. For example, while many different tasks can be performed with an excavator, from leveling ground, to digging, to lifting, the skill of operating that excavator in a safe manner remains the same. Our trade is unique in that it is largely self contained with no tasks that may be categorized as "peripheral". Every skill set our journey-persons are required to master to operate the equipment is fundamental to what would be considered the "core" element of our trade - operation.

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.

An SoP is, and should be, a concise statement of the tasks that a person in that trade should be competent to perform. The SoP is not, and does not need to be, a complete statement of all of the tasks of a person in that trade or all of the contexts in which those tasks may be performed. Nor does an SoP include or need to include specializations for which an additional qualification may be required. The tasks listed in an SoP may or may not be unique to a particular trade and may or may not pose a risk of harm. Tasks are included in an SoP because they a commonly associated with what persons in that trade should be competent to do. The SoPs for the trades of Excavator, Dozer, TLB and Concrete Pump Operator, although not extensive, do operate effectively to define all the core elements of those trades, at least as they relate to mid-sized equipment and up. In some cases context is important in interpreting and applying our SoPs. For example, one of the SoPs for the Concrete Pump Operator trade is the ‘placement of concrete’. Our operators specialize in the placement of concrete through the use of mobile concrete pumps. There may be other trades which specialize in the placement of concrete by other means. As long as context is correctly understood, the SoPs for our trades are generally accurate. Practically every element of the SoPs for the trades we govern are also unique to the trade, or at least unique to the group of trades represented by Heavy Equipment operation. The skills involved in the safe operation of heavy earth moving and concrete pumping equipment are not easily transferred or shared. Likewise, essentially every aspect of operating heavy equipment poses a risk of harm to the public, tradespeople or other workers if done without proper training. The different equipment covered by the Heavy ETB is large, heavy, and can have many moving parts, so that even traveling out to a job site could cost a life if done wrong.

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

The trades themselves and training providers have the best sense of whether SoPs continue to be accurate or relevant. We, as a trade board, feel we have developed a great cross section of expertise from our labour, management, and public members. We therefore suggest that any review or change of an SoP should be initiated at the trade board level to ensure that the above mentioned expertise underlies and grounds the review. We also suggest that ultimately a decision on that proposal should be made by an arm’s length impartial decision maker to ensure that an inclusive and visibly unbiased view of the public interest completes and confirms the review. A specific proposal for such a process might be that, after a proposed revision to the SoP has been drafted by the trade board, a formal application clearly indicating the reason(s) for the review or change should be forwarded from the trade board to the Divisional Board who will either approve or deny the request. If the Divisional Board approves the proposal, the Board of Governors would decide whether to give notice of a formal consultation which would allow potential stakeholders to have input. Finally, the Board of Governors could initiate a review panel made up of at least one knowledgeable neutral, nominees, and individuals from the Trade Board initiating the review, to make a final decision. The recommendation of this panel to either amend or leave the SoP status quo should then be forwarded to the Board of Governors to carry through the panel's decision. Panel decisions to amend an SoP need to be made based on factual evidence. A process such as the one described has two advantages. In the first place, it draws on the experience and expertise of Trade Boards. Second, and equally important, the SoP drafted by the trade board is subject to a review process that is impartial and inclusive. Whatever the appropriate process, the speed at which decisions are made and appropriate involvement of the applicable Trade Board is crucial. .

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

Although limited in some ways by their reference to the size of equipment governed, the SoPs for the Heavy Equipment trades are generally accurate within their frame of reference. They do support the College’s diverse functions. The SoPs for some other construction trades may need to be reviewed before the same can be said of them. Classification reviews for those trades where the SoPs are generally accurate should definitely not be delayed by adjustment of the SoPs for trades whose SoPs may no longer be accurate, and need revision.

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

Currently the Heavy Equipment Operator trades are voluntary, so the issue of enforcement does not apply, at this time, to our trades. Out comments therefore apply only to compulsory trades. Whether to enforce an SoP in its entirety depends on the trade. The trades which are most similar to the Heavy Equipment Operator trades are the Hoisting Engineer trades. They are compulsory. In the tasks of those trades, the tasks and skills are a coherent whole that cannot be parceled out because they are linked to the operation of particular types of equipment. It would be exceedingly dangerous for an unqualified worker to perform any of the tasks listed in one of those SoPs. For Hoisting Engineers, therefore, the entire SoP should be enforced and should be enforced in all circumstances, without exception. If the Heavy Equipment Operator trades were to be reclassified, the same principle would apply to our trades. The skills and tasks of Heavy Equipment Operators cannot be parceled out such that some tasks would be restricted, but others not. This may not be the case with some other trades.

12. Could the College benefit from a distinct list of compulsory activities that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

We don’t think it would be possible or advisable to create a distinct list of compulsory activities for the construction industry. On a construction site all work is potentially hazardous, and especially all work in connection with the operation of heavy equipment. The hazards arise as much or more from the nature of the construction environment, and because of the nature of the equipment and materials that are used, as they do from the nature of the tasks themselves. We would be concerned that identifying only particular tasks as hazardous might lead people to assume that other tasks are non-hazardous, regardless of the surrounding circumstances. Making an up-front distinction would be especially dangerous as respects the operation of excavators, backhoes, bulldozers and concrete pumps. For the Heavy ETB construction trades a distinction between hazardous and non-hazardous activities is neither feasible nor desirable. There are sometimes important differences in the degree of hazard, but all activities can be quite hazardous in some circumstances.

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

SoPs overlap where there are tasks or skills listed within an SoP that are also listed in the SoPs of one or more trades.

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

The four Heavy Equipment Operator trades do not have much history of conflict with other construction trades as a result of SoP overlaps, which are minimal even where they occur at all. Consequently, overlaps in SoPs have not so far had much impact on our daily work. The skills of the heavy equipment operator trades are tied to the operation of specific types of equipment and cannot be parceled out among other trades. We would be very concerned if persons not trained in the operation of heavy equipment took the position that there were some kinds of activities involving equipment operation that could be separated out from others and done by a trade with a different specialty without training in equipment operation.

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?

Because the trade of heavy equipment operator is currently 'voluntary' we have seen untrained and unqualified people perform functions that safety would say only those with specified training should perform. We have seen tragedies result from this. When tasks that are part of the SoP of a compulsory trade are listed in the SoP of a voluntary trade, it should not necessarily mean that it becomes entirely a matter of voluntary choice whether or not an individual gets training to perform that task. That is an exceedingly dangerous proposition because generally, the tasks included in the SoPs of a compulsory trade include risk of harm to the public or other workers if done without adequate training – that is why the training for the trade performing those tasks is compulsory. We suggest that when a task which is covered by the SoP compulsory trade is also included in the SoP of a voluntary trade, performance of the task be restricted. This would not necessarily require removing the task from the SoP of the voluntary trade or making the entire practice of that trade compulsory. Persons with a C of Q in the voluntary trade should be deemed qualified to perform the task as well as persons who have a C of Q in the compulsory trade. This would mean that only persons who have chosen to obtain a C of Q in the voluntary trade, or persons with the C of Q in the compulsory trade, would be permitted to perform that particular task.

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?

Trades are designated as compulsory because when an unqualified worker performs those tasks there is a risk to the safety of the worker, to the safety of other workers and/or to the safety of the public. Some will argue that there is other legislation for protecting the safety of workers and the public, for example, the Occupational Health and Safety Act (OHSA) for workers and the Building Code and other standards for the general public. However, worker and public safety cannot be achieved solely by relying on these other statutes. The OHSA itself incorporates by reference and relies on the Province’s imposition of mandatory licensing for particularly hazardous trades. Further, the Ministry of Labour’s Health and Safety Inspectors cannot be everywhere. Nor can Building Inspectors check every project or every aspect of construction work. The province makes some occupations compulsory because the competent performance of that occupation’s tasks is an essential aspect of safety. In construction, this principle applies as much to compulsory trades as it does to engineers and architects. The generalized regulations regarding “competent persons” under OHSA cannot do the whole job. The College has a duty to consider whether, in the interests of public and worker safety, some additional construction trades such as the operation of concrete pumps and other heavy construction equipment also need to be restricted to persons who have recognized and specific qualifications.

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?

Those construction trades which are currently classified as compulsory should remain so. Those classifications protect the public interest. However, the Heavy ETB also believes that there are additional trades for which specified training and licensing should become compulsory. A streamlined process capable of ensuring that those trades for which training should be compulsory are designated as compulsory is necessary to meet the College’s duty to protect the public interest. Historically, the classification review process has been much too slow. We understand that some applications for compulsory status were made before the Armstrong Report (2008) and still have not been considered. The College should consider these applications without further delay. If running more than one review during the same time period or developing a process for prioritizing outstanding applications assists in determining what currently unsafe practices should be regulated in an expedited basis, those practices should be seriously considered.

18. Is it reasonable to assume that there may be elements in the SoP for a trade that are inherently hazardous or that may pose a risk of harm to the public, tradespeople, or other workers on the job?

Yes, it is reasonable to assume that there could be elements of an SoP that are inherently hazardous.

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?

This would need to be determined on a trade-by-trade basis. All of the core tasks of the heavy equipment operation trades should be restricted to persons with a C of Q. The tasks of a heavy equipment operator cannot be separated into core and peripheral. Nor can they be separated into high hazard tasks and low hazard tasks. The hazard is inherent in operating the equipment. We recognize there may well be other trades where it might be appropriate to restrict only some of the core tasks to persons with a C of Q.

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 adjudicative review panel approach worked well in the consideration of ratio changes. A large number of ratio cases were considered within a relatively compressed period of time. The decisions of the review panels rigorously applied the criteria specified in Reg 458/11 and weighed the evidence that was presented. All proponents had an opportunity to make oral representations. The limits that the panels imposed on the length and format of written submissions and the duration of oral argument were not unreasonable. All of the requirements of due process and fairness were met. The criticisms of those proponents whose submissions did not prevail needs to be taken with a grain of salt. It is also our view that the adjudicative review panel approach worked well when applied to the application for compulsory status by Sprinkler and Fire Protection Installers. The decision on the review of compulsory status for the Sprinkler and Fire Protection Installers also successfully turned on the assessment of the public interest. Although some may be attacking the outcome, we are not aware of any problems with the process. The adjudicative process, involving the presentation of evidence and argument from different stake holders before a neutral decision maker with labour relations expertise, is similar to the way the OLRB operates. The discontent of those whose submissions did not prevail (sometimes called ‘sore losers’) should not be allowed to undermine confidence in a fair, impartial and appropriate process.

21. How should expert opinion be obtained?

The OLRB is quite familiar with the process of receiving and evaluating expert opinion. It may also be appropriate for the College to commission or to prepare economic impact studies where these may be relevant.

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 do identify relevant considerations to take into account when assessing the public interest. However, the criteria are not all of the same level of importance or relevance. The Regulation as currently worded could be treated as saying that they are. The Heavy ETB believes that the public and worker safety criteria should be of overriding importance, possibly followed by environmental impact. The other factors, including economic impact and the relevance of labour market demand and availability, should all be secondary. This is very important to us. Fees and accessibility of doctors, dentists and nurses would probably be lower and easier if there were no restrictions on the right to practice these professions. However, this supposedly ‘positive’ impact is hardly sufficient to trump the importance of protecting the public from incompetence.

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

If the criteria are restructured to prioritize public and worker safety, the nature of the relevant evidence is clear. Potential sources of evidence under these headings include coroners’ reports, WSIB data on accepted lost time claims and fatalities, and the opinion of experts such as Health and Safety Inspectors and Building Code Inspectors and relevant statutory authorities such as the Technical Standards and Safety Authority and the Canadian Standards Association. The policies of other comparable jurisdictions are also relevant. It would be helpful if the WSIB coded occupation in its incident reports (Forms 6 and 7). The College could also provide prospective proponents with a guide to potential sources of evidence so as to encourage more submissions to ground their arguments in evidence rather than conjecture. Economic factors, though relevant, should be secondary to worker and public safety. There is no shortage of economic data.

24. Are the existing criteria the right criteria?

We do believe the existing criteria accurately identify issues which may be relevant to protecting the public interest. Our primary concern is that there really should be a means of distinguishing between criteria of primary and of secondary importance. Worker and public safety should be of primary importance. In addition to the other criteria already set out in Reg. 458/11, we believe an additional consideration could be added - as a secondary criteria. This would be the impact of compulsory status on inter-provincial labour mobility and the Red Seal system for mutual recognition of qualifications.

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?

Yes, the current SoPs accurately reflect the way work is assigned within the Heavy Equipment Operator trade (Tractor-Loader-Backhoe, bulldozer, concrete pump, etc.) Certainly when our tradespeople are assigned to operate a bulldozer eg, the SoP accurately reflects what they are asked to do.

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

Jurisdictional disputes involving the Heavy Equipment Operating trades are not over peripheral tasks. Rather, the disputes tend to arise when a contractor fails to comply with the correct collective agreement, or area and employer practice. This can happen when an employer mistakenly believes that there is no risk of injury if an unqualified person operates equipment for only a short period of time. These are not disputes about core versus peripheral matters. These are disputes that arise in situations where employers believe they can save costs and avoid conflict by using less qualified people.

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.

The way that the OLRB has described evidence of practice, and made decisions on work assignment and jurisdictional disputes between trade unions could be a useful source of information for the College, both when deciding classification reviews, and when determining its policy on the enforcement of various elements of the SoPs of different trades. However, we do not support the idea of the College adopting the decisions of the OLRB, or relying on them to the exclusion of the factors the College is specifically tasked with taking into account. The OLRB adjudicates jurisdictional disputes for reasons entirely different from that of the College enforcing licensing decisions. Where the OLRB is largely concerned with interpreting and enforcing collective bargaining agreements that impose overlapping obligations on employers, the College is primarily concerned about the competence of the worker - not which union (if any) represents that worker. With the College, public and worker safety is the overriding concern. There is no reason why the College should defer to an OLRB decision that turned on ‘employer preference’ or ‘area practice’ when it may be precisely employer preference or area practice that is the threat to worker or public safety. We do, however, believe that enforcement issues should be heard by the OLRB, not by a Justice of Peace in a provincial court. The OLRB is an expert body in employment matters. The provincial court is not. Nothing good has ever come from involving the provincial courts in labour relations matters.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

Respondent did not provide a response to this question