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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-90C

Name of organisation making submission: DR-90C Canadian Farm Builders Association

Responses to questions in submission form


The Public Interest

1) What do you understand by public interest?
For the purposes of the Ontario College of Trades the “public interest” should be defined to include:

  • That young people have the opportunity to consider the skilled trades as first choice career options
  • That individuals who work in the skilled trades are properly trained to perform work of their various trades competently and are appropriately certified

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

  • The Ontario College of Trades like all other self-regulating colleges was established to serve and protect the public
  • The public includes buyers and users of built structures, the general public and on-site trades people, to the extent they are not already protected by other inspection and enforcement regimes
  • It should be noted that the Ontario College of Trades has a natural interest in increasing the number of compulsory trades in Ontario in order to increase revenues to the College and grow the business.  This is NOT in the public interest. OCoT must be very careful not to be seen as a self-serving agency or it will lose all credibility.

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

  • Decisions made by the College including those regarding ratios of journeypersons to apprentices and regarding the classification of trades as voluntary or compulsory must be made based on research, evidence and facts.
  • There must be a demonstrated broad support for any application for compulsory designation from the industry and the public.
  • Such application must clearly demonstrate by evidence, not just hearsay or anecdotal submissions, that it benefits the interest of the public.
    • Safety
    • Economic impact
    • Mobility of the skilled trades
    • Encourages and supports more participation in the skilled trades
    • Positively impacts the skilled trade and the industry

4) Is the College currently protecting the public interest?

  • No, the labour relations modelled panels which make these decisions rarely consider the public interest.  They are forced to only consider the written submissions and oral presentations from industry insiders which are largely anecdotal and emotional.  Decisions are currently made without research, evidence and fact and seldom without input from the public. 
  • The College has spent too much time enforcing the more menial tasks or peripheral activities that fall within the scope of work of a compulsory trade, work that could be performed competently by workers from another trade, work that is not hazardous and work that does not put the public at risk.  This activity is not in the public interest.
  • OCoT has not been in the field long enough for industry or the public to assess its impact on the public interest. 
  • Public Interest also cannot be accounted for when OCoT does not make any effort to meet the public or the contractors (the ones working at the job sites) to explain their role, their mandate, their progress.  OCoT seems to be operating in its own interests until it has determined what it wants to do with their mandate.  It appears they are not ready to have a “grand opening” because they are still working out their place in the industry. Further, it appears that OCoT is seeking more things to do, to justify its present role. The suggestion it may get involved with settling disputes and the fact that it is taking on an enforcement role, when other agencies could easily do this at a minimal cost, is a clear indication it is going beyond its mandate. This is not in the public interest.

5) How should the College advance the public interest?

  • The Ontario College of Trades must establish an extremely high bar, a high threshold of evidence in making decisions to change the classification  of a trade
  • As a start, the College should establish appropriate training standards and do a National Occupational Classifications Analyses for apprenticeship opportunities.
  • The College must investigate complaints from the public effectively and in a timely manner; but strictly within their mandate, and not duplicate other agencies and regimes already in place.
  • The College should insert itself in the workplaces of Ontario as minimally as possible and only to protect the public interest
  • The College must not establish needless barriers to entry into the skilled trades
  • The College should avoid duplication and should not enforce workplace activities that are subject to inspections and enforcement of other statutes and regimes such as the OHSA and the TSSA
  • The Colleges enforcement activities must be limited to the single act of inspecting for Certification compliance for the compulsory trades.
  • The College should promote the fulfilling careers in the skilled trades to the community, especially to parents, teachers and students at all levels within the school system.

Scope of Practice

6) What impact do SoPs in regulation have on your daily work activities or on the way you conduct business? What aspects of a SoP are important to the work of your trade? Please explain.

  • In the construction of agricultural buildings work is not assigned with any reference to the College of Trades’ Scopes of Practice.  Even the most experienced farm builders would not be familiar with the term ‘scope of practice’, what it means or what its intended purpose is. SoP’s as interpreted in this Review, are not used in the farm building construction industry.
  • Trades work together to ensure that work is done in the safest and most efficient manner. The farm building industry creates groups of trades with different skills to produce a completed project with the attitude that everyone is working for the same objective. Existing Certified trades are employed to provide their regulated  work, but  Certified trades often are required to multi-task and do many other “peripheral” parts of the work. The efficiencies of working together would be lost if all voluntary and compulsory trades were limited to some regulated or bureaucratic designed scope of practise.  OCoT has no place in the process of construction to impose SoP on the workers or the contractors.
  • There are never any SoP’s written in our industry. Work assignments cannot be made by a template, regulation, legislation, or preordained for the construction industry.  Work varies from project to project, depending of the project location, size, availability of labour, and the Skilled trades required.

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

  • Yes, there are core elements in a compulsory trade that all persons working in that trade must know in order to perform in their everyday work
  • There are also peripheral elements or activities within a compulsory trade which could be elements that require more specialized training or activities that could be more hazardous and pose a risk to the public which also require special training
  • These elements should not be confused with the use of the term Scope of Practice. 
  • Skilled trades should have a clear definition of what is considered core, and those core elements should only be performed by that trade.  This is not a SoP, but a very precise, narrow and specific detail of how that Skill or activity is performed in the everyday workplace for the “public interest”. This should be based almost exclusively on the need for public safety.

 8) What should be the key elements of a 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.

  • As per above the OCoT should not write or have any input with this Scope of Practice for any trade.
  • The format and style of SoPs would have to be so varied from trade to trade and almost impossible in the Construction industry to describe because each project has different trades, different responsibilities which are not transferable  or consistent from project to project. Part of the success of any project is the scheduling of work with the active participation of all trades involved. This is unique to each project. OCoT has not skill, experience, training or knowledge about this activity in the workplace. 
  • SoPs are of little or no use for the purposes of apprenticeship or enforcement
  • SoP should not be confused with “work jurisdiction” which is the purview of the Ontario Labour Relations Board
  • The Ontario College of Trades should develop apprenticeship training programs based on NOAs for Red Seal trades and provincial training standards for non-Red Seal trades

 

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

  • SoPs are an unnecessary confusion and should be abandoned.  A SoP for a trade is simply a high level statement or statements that very generally describes the work of a trade and are open to multiple interpretations.
  • SoP’s as suggested by these questions are not referenced for the assignment of work in farm building.  For Compulsory trades a work or skill definition should be created that is very specific and as limited as possible. This would be used for enforcement inspectors as the specific criteria for compliance.
  • The assignment of work among workers of various skills and training varies      from one project to another as to the responsibilities of each trade, voluntary or compulsory, as needed.  In construction it is not possible to put these in a generic template.

Multiple Uses of SoPs

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

  • The Ontario College of Trades should develop apprenticeship training programs based on NOAs  and provincial training standards learning outcomes for all trades
  • SoPs must not be used for enforcement.  They are far too vague and open to interpretation.  Use of SoPs for enforcement will lead to significantly uneven enforcement, unnecessary job site disputes due to confusion about which regulation is supreme.  A contractor or Skill trade cannot serve two masters.  There are other agencies who are legislated to enforce occupational health and safety on the job site. OCoT should NOT duplicate other agency’s work, especially if it involves enforcement.

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

  • Absolutely NOT
  • SoPs as per above, should not be part of OCoT’s enforcement and certainly should not be created by them.
  • If by SoP the author really means NOA or provincial training standards, again absolutely NOT
  • The College should develop a definition  of compulsory activities within each compulsory trade that are hazardous, require special training, pose a risk to the public and are not subject to another regulation, inspection or enforcement by another statute or regime
  • As much as possible, the compulsory activities should be unique to one trade only.
  • The College’s enforcement activities should be restricted to these compulsory activities in the compulsory 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.

  • See response to Question 11

Yes, for compulsory trades only, a narrow list of compulsory activities should be developed, activities that are hazardous and pose a risk to the public that should be the focus of OCoT enforcement

Overlap Between SoPs

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

  • An overlap of SoPs occurs when the SoPs for two or more trades are so broad that some of the same activities are included in the SoPs of two or more trades
  • This is particularly problematic for the OCoT today when the SoP of a compulsory trade overlaps with a voluntary SoP
  • OCoT should not try to dictate how the skills of all trades are employed at a workplace. It should not be involved with this at all. OCoT should only enforce the certification of Compulsory Trades.

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

  • See responses to questions 6 & 9

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?
Classification/Reclassification of Trades
The CFBA is not expert enough to respond to this question.

16) What makes a compulsory trade compulsory and what makes a voluntary trade voluntary?

  • A Skilled trade should only be Compulsory if :
    • Skill is required for specific hazardous workplace practices such as
      • Crane operator
      • Electrical
      • Nuclear waste
      • High pressure welding
      • Etc.
  • All compulsory designations must meet a high threshold based on evidence, research to substantiate it is that compulsory designation is in the public interest. It must be able to demonstrate broad industry and public support.

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?

  • The most often used examples of existing misclassifications are the status of the hair stylist trade as compulsory and the power line technician as voluntary
  • We won’t know if the other classifications are appropriate without the research, evidence and fact.
  • If one wishes a case can be made to make any and every trade a compulsory trade.  A teenager working at McDonalds flipping burgers is handling food, which is consumed. Should this be a Compulsory trade? There are inherent and potentially dangerous aspects to everything in life. OCoT must demonstrate in each case, upon application for a Compulsory designation through overwhelming evidence and research that a particular trade should be Compulsory for the public’s interest.  In the McDonald’s example, the risk to the public is covered off effectively through local public health departments ’restaurant inspections.

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?

  • Absolutely.

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?

  • Yes or stated differently, only those elements would be enforced.

Process and Criteria for Classification/Reclassification

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 labour relations style review panel model was envisioned by Tim Armstrong and put in place Kevin Whittaker, two people from labour relations backgrounds so that the College is mandated to use this style of review comes as no surprise
  • The current model lacks appropriate criteria and detail
  • Currently an application for change in trade classification is made by the trade board for a trade.  The trade boards are usually comprised of 3 labour reps and 3 management reps.  So a majority of the members of a trade board may agree to make the application to the Board of Governors.  The trade board is not required to submit their rationale or case for the change in trade classification.  The application made by as few as four people and without providing any rationale triggers a hugely expensive and time consuming process to consider and make a determination regarding the application is, to put it mildly, absurd; and highly potentially dangerous for the construction industry.
  • The mandated time provided for stakeholders who might oppose the application to change the classification of a trade from voluntary to compulsory to prepare their submissions must allow for full participation with reasonable timelines.  The current time allotted to prepare submissions is too short. 
  • There is no opportunity to provide research, evidence and fact.  Most stakeholders do not have the resources and capacity to commission research to present to the review panel.  Therefore, the obligation to commission independent unbiased expert research must be inserted into the process
  • We have examined the Health Professions Regulatory Advisory Committee model referred to in footnote 1 on page 10 of the Consultation Guide.  A similar body could be established to commission research with tweaking to match the needs of the construction industry.
  • Decisions are made based on the written submissions from stakeholders which in the main have been highly inadequate, emotional and anecdotal and on their oral presentations to the panel
  • The construction industry believes it should have a say in these decisions

21) How should expert opinion be obtained?

  • We have examined the Health Professions Regulatory Advisory Committee model referred to in footnote 1 on page 10 of the Consultation Guide.  A similar body could be established to commission research
  • How/where this would be positioned in the process would have to be worked out

22) Are the current criteria for trade classification reviews set out in O. Reg. 458/11 consistent with the public interest? Please explain.
The CFBA does not have the expertise or experience to respond to this in a complete and educated way.  We have not had the time to research this.

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

  • No, more detail should be provided,  giving direction to stakeholders of the kind of evidence that they must submit

24) Are the existing criteria the right criteria?

  • No, more detail is required for each of the seven criteria
  • Also criteria such as the environment have no impact for the purposes of trades training, promotion and enforcement

Decisions of the Ontario Labour Relations Board

25) Do the SoPs in regulation reflect the ways in which work is actually assigned in your trade or sector?

  • No, work is assigned among workers from various trades in the safest and most efficient manner in which the work can be performed competently. All compulsory trades must do the tasks regulated by their trade definitions.
  • No SoP’s should be created or regulated or enforced by OCoT. It cannot be overstated that OCoT should resist the temptation to organize the way contractors organize their workplace efficiencies.  The overseeing of the projects by civil and structural engineers, building inspectors, Ministry of labour for safety compliance, environmental compliance agencies, etc. ensure that the project meets safety and code compliance. 

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

  • Most disputes arise from more menial tasks that don’t require specialized training and that don’t pose a risk to the public
  • The public doesn’t really care who performs these tasks and it is therefore a non-issue for the general public.
  • The concern is that some sectors of the construction industry will misuse the designation for a Compulsory trade to legislate  ”work territory”; for their own interest, to gain more control of specific Skilled trades work. This is not in the public interest.  To circumvent the OLRB’s rulings in disputes these special interests are trying to use the “back door” of OCoT’s SoP’s to capture by legislation, a greater share of the work.   This would manipulate the bidding process, and the efficiencies of the workplace.

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 College should not attempt to enforce work jurisdiction. This is not what OCoT should be doing. This is interference in an area of law that is none of OCoT’s business.
  • Work jurisdiction disputes are the exclusive domain of the Ontario Labour Relations Board and should remain so. OCoT has a definite conflict of interest in commenting on or engaging in the dispute settlement process.
  • The College must avoid conflict with OLRB decisions as much as possible