Employers and Labourers’ Union like changes in compulsory certification, apprenticeship ratio reviews, scope of practice and enforcement processes
Canadian Design and Construction Report
Tony Dean’s review of the Ontario College of Trades (OCOT) will result in changes that address the concerns of non-union employers and the labourers’ union, especially in critical areas such as scopes of practice and the criteria and processes to be applied for apprenticeship ratio reviews and compulsory certification applications.
Ontario’s government has announced it will accept Dean’s recommendations and “will bring forward proposed legislative changes in the spring legislative session and will work closely with the College of Trades” to implement the recommendations, according to a government news release.
Not surprisingly, industry reaction diverges, with the Labourers’ International Union of North America Local (LiUNA) speaking out in favour of the decision, along with the Residential Construction Council of Ontario (RESCON).
Meanwhile, both the International Brotherhood of Electrical Workers (IBEW) and the Carpenters’ District Council of Ontario (CDCO) have expressed dismay with the recommendations and the fact that the government is preparing to implement them without further consultation or negotiations.
The IBEW Construction Council of Ontario (IBEW CCO) issued a news release shortly after the report was released on Nov. 20, saying it is extremely disappointed in the government’s decision, announced when Training, Colleges and University Minister Reza Moridi released Dean’s recommendations.
“We expected the government would invite comments on Dean’s proposal so there could be broad industry consultation and acceptance. Instead, we are being told this is the way it’s going to be,” said John Grimshaw, executive secretary treasurer for the IBEW CCO.
“We are very concerned that there are significant changes being proposed in the Dean Report that will affect us and other trades,” Grimshaw said. “Yet, the industry is being presented with the report without the opportunity to comment on significant changes that will affect us. That is a mistake.”
Notably, the proposed changes will remove the decision making power for compulsory certification from review boards that could be stacked with representatives of self-interested organizations, and makes safety the key criteria for any decision to implement compulsory certification requirements.
The original certification/review process aroused the ire of the Labourers’ Union and some employers, especially as the carpenters’ union pushed forward its proposal for that trade’s compulsory certification.
The carpentry certification process started in February 2014 at a meeting of the OCOT’s eight-member General Carpenter Construction Sector Trade board. The sector board included an equal number of union and employer representatives, including Tom Cardinal, then the Sudbury based president of the CDCO. The union had indicated in 2013 that it was considering making a move towards compulsory certification, which would set qualifications and regulate who could become a carpenter in the province, restricting carpentry work to certified carpenters rather than labourers, handymen, or other trades.
Someone familiar with the OCOT’s General Carpenter Sector Board said union representatives caught employers off guard with the original certification motion.
“They timed it when they knew an employer would be the chair of the board, and thus would only be able to cast his vote in a tie situation,” the individual said. This meant, with three regular employer members, and four worker representatives, the request for certification could pass with a 4-3 vote in favour.
Meanwhile, the labourers’ union were running into job site problems when other trades, including the IBEW, sought OCOT enforcement action for labourers doing work that the labourers said were always within their scope of practice.
The conflicts and controversies resulted in increasing political pressure on the Liberal government, especially when the labourers joined with nonunion employers in an unusual alliance calling on the government to either reform or disband the OCOT. Premier Kathleen Wynne promised to review the OCOT in the last provincial election campaign, and in fulfilling the election promise, Dean started work in late 2014.
In his recommendations, Dean says the provincial government’s Minister of Training, Colleges and Universities should “appoint a roster of experts,who would serve on review panels for decisions about the classification or reclassification of trades and be advisory to the minister on matters of apprenticeship and training.”
Dean says these experts would be “individuals without an affiliation with a trade or a particular trade sector.”
“They could include individuals with expertise in areas such as public administration, facilitation and decision making, health and safety, labour market development and the economy and consumer protection,” he wrote.
“It’s unfortunate that the government is committing to more bureaucracy instead of placing public protection first,” said Tony Iannuzzi.
Notably, these review panels will be larger — with five or seven members instead of the original structure with three panelists — and they will have a clear mandate to focus on the public interest in their decisions.
The CDCO says Dean’s recommended changes will result in delays and weaken the OCOT by requiring the new expert panel.
“It’s unfortunate that the government is committing to more bureaucracy instead of placing public protection first,” said Tony Iannuzzi, the CDCO’s executive secretary treasurer. “What Ontario really needs is a future in which young people can learn a skilled trade the right way, and be proud of the trade they do. That only happens when we start treating trades professionally.”
In his review, Dean sets out the criteria for review panel decisions about compulsory certification, making it clear that “the key factor for the classification or reclassification of a trade as voluntary or compulsory is risk of harm to one or more of (a) the individuals working in the trade, (b) other workers on the job and/or (c) the public.”
Dean said secondary factors relate to public interest including economic impact, access to the trade and labour mobility, a “demonstrated public need,” and “implementation considerations such as education and training, strategy for individuals currently practicing the trade (grand-parenting), impact on training ratios, etc.”
“In its decision making, the review panel should weigh the criteria with deference to the key factor compared with the secondary factors and may weigh each of the secondary factors, as it considers appropriate within this framework,” Dean wrote.
Meanwhile, LiUNA expressed support for Dean’s proposals in response to scope of practice controversies.
“Mr. Dean has delivered a solid report and we are encouraged that both the Ontario government and the OCOT have accepted his recommendations,” said Joseph Mancinelli, LiUNA international vice president and regional manager of central and eastern Canada.
“LiUNA Local 183 believes that Dean’s recommendations will go a long way towards providing the balance that has been missing from OCOT,” said Jack Oliveira, business manager of LiUNA Local 183 and the LiUNA Ontario Provincial District Council. “They underscore the importance of evidence and expertise when making decisions that fundamentally impact tens of thousands of hard working Ontarians and the wellbeing of a vital sector of our economy. Together, we can ensure that OCOT works for the tradespeople building Ontario up, the businesses that hire them and the greater public interest.”
Regarding scopes of practice (SoP), Dean outlined these recommendations: SoP recommendation 1.
In consultation with the ministry, the OCOT should proceed with its program evaluation process in order to recommend any amendments to the MTCU regarding the consolidation or reduction of the number of trades named under the Ontario College of Trades and Apprenticeship Act.
SoP recommendation 2.
The OCOT should be mindful of its duty to serve and protect the public interest in carrying out SoP reviews and for the various uses of SoPs. “It will be important that the college consider how SoPs are used within its policy framework for compliance and enforcement and, specifically, how they contribute to defining what it means to ‘engage in the practice’ of each compulsory trade,” Dean wrote.
SoP recommendation 3.
The OCOT should update and standardize the SoPs for trades using a common framework and template. “The review process should be consistent for all trades, with overlaps in work between trades being discussed as part of the SoP review process in order that they are acknowledged and recognized for the purpose of training and apprenticeship. The college would be responsible for scheduling and grouping trades for the SoP review. Once the SoPs are updated and standardized, the college should periodically review them to capture any changes or advancements in technology, processes and equipment for a trade.”
SoP recommendation 4.
The OCOT should determine which features of a trade’s SoP may be in board regulations and which features may be in OCOT guidelines or other operational policy documents.
Dean wrote that, in establishing updated and standardized SoPs for trades, the OCOT should consider a broad set of inputs for the review of SoPs. This could include:
• the general description or statements in regulation;
• advice of industry, subject matter experts and the public;
• common overlaps with other trades;
• exemptions and exclusions that may apply to the trade and are within the board’s purview;
• existing training documents used by the OCOT, including the National Occupational Analysis for Red Seal trades and OCOT apprenticeship training and curriculum standards;
• other legislation and regulations that reference the trade;
• any standards of practice, guidelines, policies and/or bylaws that may apply to members of the OCOT practicing the trade.
SoP recommendation 5.
The OCOT should leverage its trade boards to facilitate the process for reviewing and updating SoPs for trades. “SoP reviews should include discussions with other trades with overlapping work, which should include discussions between trade boards and other stakeholders. Trades should come to consensus on proposed amendments to a trade’s SoP,” Dean wrote.
SoP recommendation 6. “The college may need to establish a non-binding conciliation process to help build consensus between trades, including discussions between trade boards, especially on areas of overlap.”
For journeymen to apprenticeship ratio reviews, he recommended:
Journeyperson-to-apprentice ratio reviews recommendation 1.
“The roster of adjudicators for review panels and selection of review panels should continue as outlined under the Ontario College of Trades and Apprenticeship Act.” The OCOT’s professional and administrative staff of the OCOT should support the ratio review panels, Dean wrote.
Journeyperson-to-apprentice ratio reviews recommendation 2.
The OCOT should make sufficient efforts to communicate information about ratio reviews to ensure broad stakeholder participation from across Ontario.
Journeyperson-to-apprentice ratio reviews recommendation 3.
“The college’s board should consider establishing new criteria under O. Reg. 458/11. Review panels would evaluate submissions against these criteria to decide the appropriate ratio for a trade prescribed with a ratio.” Dean recommended the following criteria:
• quality of on the job training, “the impact of journeyperson-to-apprentice ratio on the training and performance of the apprenticeship and certification in the trade;”
• the potential for risk of harm for an apprentice and others;
• the demographic and labour market information for the trade, “including the age and availability of journeypersons, the number of prospective and registered apprentices and the rate of apprenticeship completions and certification;”
• economic impact, including impact on consumers, employers, apprentices, tradespeople, training institutions and government;
• the demand for skilled trades in different regional/geographic areas of the province and any trade sector realities;
• the experience of ratios for a similar trade or trade sector in other jurisdictions; and
• other factors relevant to the public interest.
The review panel may weigh the criteria, as it considers appropriate, Dean wrote.
“There may be a need to provide the board with the authority to consider a short delay for the next cycle, due to begin in 2016, to allow for public consultation on any proposed regulatory amendments and other implementation activities.”
Journeyperson-to-apprentice ratio reviews recommendation 5.
“The review panel for ratios should have the ability to call its own evidence. It should not be limited to evidence contained in participant written and oral submissions.”
Journeyperson-to-apprentice ratio reviews recommendation 6.
The OCOT should “accelerate the collection of, monitoring of and research about ratios and make this information available as part of its public data.”
Journeyperson-to-apprentice ratio reviews recommendation 7.
The board should revisit the timeframe required for a review panel to render its decision following its appointment, Dean wrote. “The current 120-day timeframe could be extended to 180 days, with any further extension being at the discretion of the board. Alternatively, the chair of the review panel could determine the time required for this part of the process, based on the specific circumstances of the application. There should be clear communication of the timeframe.”
Journeyperson-to-apprentice ratio reviews recommendation 8.
The OCOT “should develop a policy and evaluation framework to clarify the broader public policy goals, including the purpose and implementation considerations for journeyperson-to-apprentice ratios for trades prescribed with ratios. This framework should be informed by college stakeholders and the findings made publicly available.”
OCOT enforcement systems
For enforcement and Ontario Labour Relations Board issues, Dean outlined some rule changes, with the observation that ‘The college’s current approach to compliance and enforcement of the prohibitions under OCTAA could benefit from a framework to provide clarity on enforcement that aligns with the public interest to protect workers and the public from harm.”
OCOT enforcement recommendation 1.
The OCOT should develop a policy based approach to compliance and enforcement that considers risk of harm and consumer protection. “The college registrar could operationalize this through the issuance of directives, guidelines or other interpretive documents made publicly available on the college’s website and through any other means the college deems appropriate.”
OCOT enforcement recommendation 2.
The OCOT should establish a compliance and enforcement committee of the board “to assist with the development of a policy based framework for compliance and enforcement. The majority of the membership of this committee should be representatives from employer and employee groups with knowledge of the trades or trade sectors and who are not members of the college’s governing boards. The board may also consider the need for representatives of other regulators and the public.”
OCOT enforcement and Ontario Labour Relations Board decisions
The OCOT’s current approach to enforcement applies to the “full scope of practice” for a compulsory trade, and it regards this as equivalent to “engaging in the practice” of a compulsory trade, Dean wrote. “This approach is inconsistent with and, in some cases, is disrupting previous agreements between workplace parties and past decisions of the Ontario Labour Relations Board (OLRB) in resolving jurisdictional disputes. This is an issue because of the many factors in sectors and workplaces which have given rise to overlapping work between trades.”
He then elaborated how these matters should be managed:
OLRB decision recommendation 1:
“Develop a mechanism that would allow individuals or their representatives or employers to appeal to the OLRB on the basis that the OLRB previously addressed the college enforcement action or it is the subject of an existing agreement. In developing the mechanism for appeals, it is recommended that:
• The OLRB would first determine on a prima facie basis whether there are grounds for an appeal.
• Where the OLRB proceeds with an appeal, it would be directed to have regard to, among other things, the Ontario College of Trades and Apprenticeship Act and the college would have standing before the OLRB. Where an appeal is upheld, the matter would be nullified.
• Where the OLRB finds that an existing decision or agreement is relevant in an appeal but not determinative, it may designate the matter as a jurisdictional dispute, and it would be processed accordingly. In this case, the college would have standing before the OLRB. If the OLRB finds on behalf of the appellant, the matter would be nullified.
• The action of the college would be stayed until the OLRB releases a decision.” LiUNA said in its news release that it is pleased with these decisions regarding enforcement. In a news release, the OCOT said it accepts the recommendations and will work with the government on their implementation.
“Today, the OCOT, along with the Minister of Training, Colleges and Universities, received Mr. Dean’s recommendations to help address some technical processes that we all agree could benefit from improvement,” OCOT board of governors’ chair Pat Blackwood said in a statement.
“The college is pleased that Mr. Dean begins his report by endorsing the college’s mandate, the important role of our trade boards, and the valuable work we do on a daily basis to protect the public interest, and modernize and promote the skilled trades in Ontario.”
“We are happy to report that we have already begun to undertake foundational work that aligns with the direction of some of Mr. Dean’s recommendations.”
“Given the complexity and importance of getting it right, the college, with input from our trade boards, divisional boards and board of governors, will work closely with the Ministry of Training, Colleges and Universities to develop an implementation strategy that is effective and practical.”
“It is important to note that throughout this process the college has and will continue to fulfill its mandate to protect the public interest, modernize and promote the skilled trades.”
RESCON, representing residential contractors, said in following the Dean review recommendations, a key issue will be how they are implemented.
“This focus on implementation will be key to OCOT’s future success as it looks to address issues related to the role of enforcement, scopes of practice and apprenticeship ratio reviews,” RESCON vice president Andrew Pariser said. “RESCON, as an industry leader in residential construction, would like to reconfirm its commitment to working with the MTCU, as well as OCOT, as an active and supportive partner as the implementation process takes shape.”
RESCON president Richard Lyall said in a statement: “With a commitment from all parties, opportunities can be created to help Ontario’s youth find work in the skilled trades, to fill the job shortage and build an industry that will thrive for generations to come.”