Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-103B

Name of organisation making submission: DR-103B International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736

Dear Mr. Dean:

I am writing in my capacity as Business Manager of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736 (“Local 736”) to provide Local 736’s submissions to the Dean Review in response to the questions posed in the Consultation Guide. I am an iron worker by trade, and as such, I can also offer my submissions as a tradesperson affected by the Ontario College of Trades (the “College”).

Local 736 is a construction trade union affiliated with the Iron Workers District Council of Ontario (the “IWDC”) and its International parent. Local 736 represents a total of 1160 active members, which consist of 180 Apprentice Iron Worker members, 688 Journeyperson Iron Workers, and the rest are made up of probationary members, structural and machinery movers, and various other classifications. Our 688 Journeyperson Iron Workers include 577 members who are journeymen iron workers and 111 journeymen reinforcing rod workers.  Most of those persons hold Certificates of Qualification and/or inter-Provincial Red Seal status..

Our members perform construction and maintenance work throughout greater Hamilton and Niagara areas, the Kitchener-Waterloo, Guelph, Cambridge areas and in other parts of southwestern Ontario including the Bruce Nuclear Generating Station.  A great deal of our members’ work takes place in the Hamilton and Nanticoke steel plants, automotive plants in Cambridge and St. Catherine’s, the Bruce NGS, concrete plants, sewer and water plants, schools, hospitals, condominium projects and all types of building and construction projects.

Local 736 provides extensive training as a training delivery agent to iron worker and rodworker apprentices, using curriculum designed and approved by the Province of Ontario (in consultation with Local 736, along with other Iron Worker locals and the IWDC) for current apprenticeship and certification systems for the iron worker and rodmen trades. Local 736 runs a state of the art training centre administered by our training trust fund; the training centre provides additional training and upgrading for existing journeyperson members.  We provide a training function for skilled workers for Ontario’s markets, which no one else provides.  We recently purchased a new building to house our training centre and offices. 

The work of our members is currently covered by three voluntary trades that are subject to the College’s jurisdiction: Ironworker (structural and ornamental), reinforcing rodworker, and the hybrid category of Ironworker (generalist). The Scopes of Practice (SoPs) for our three voluntary trades have not been the subject of recent review. They were entirely imported from the regulations that formerly operated under the Trades Qualification and Apprenticeship Act (“TQAA”).

Given the work performed by our members, Local 736 welcomes the Dean Review and the opportunity to raise some of our profound concerns with the current SoPs, as well as our concerns with the operation of the system that designates and enforces the work of voluntary and compulsory trades in Ontario.

Our format for these submissions follows the general sections as posed in the Guide. However, we have not undertaken to specifically answer each question individually. As the answers to some of the questions intersect and overlap, we have answered questions generally in the groups in which they appear in the Guide.

  1. The Public Interest in this Review
  2. Local 736 submits that the College ought to take a broad and contextual approach to its interpretation of the “public interest.” In addition to the general public, the “public” includes tradespeople, apprentices, direct employers, bargaining agents, employer and employee associations, and the consumers of their services including general contractors and owners and the non-construction personnel who will work in and with the structures erected by Iron Workers. However, the application of public interest in any given case ought to be context specific. For example, in many cases, Iron Workers perform work in an environment where the general public will have little or no access to premises that are highly regulated operating environments, such as a steel plant or a nuclear generating station. In all cases, Iron Workers perform their work in the highly regulated environment created by the Occupational Health & Safety Act and its applicable construction or industrial regulations.

    The College ought to consider the following when taking into account the public interest: the safety of the general public and of tradespeople and other workers; ensuring a current skilled and trained construction workforce; ensuring a continued supply of skilled and qualified workers to meet Ontario (and Canada’s) construction needs; restricting unnecessary barriers to entry to the construction trades; restricting unnecessary barriers to the labour mobility of the construction trades; and consumer protection.

    Local 736 submits that the College’s focus on the public interest ought to promote stability and reliability in the construction industry and not the narrow segments of the industry who, unfortunately, misuse the College for self-serving commercial or jurisdictional purposes inconsistent with its statutory purposes.

  3. Issues Related to Scopes of Practice
  4. As mentioned above, most of the Iron Workers’ members fall within one of three designated voluntary trades of ironworker (structural and ornamental), ironworker (generalist) or reinforcing rodworker. The ironworkers’ SoPs are old and out of date. They were not even amended or reviewed when the College was created.  They are unchanged from the days of the TQAA.

    Ironworkers’ SoPs also fail to reflect the true breadth of the ironworker voluntary trades. For example, the two voluntary trades applicable to ironwork entirely fail to specifically mention welding, despite the fact that welding is a crucial aspect of the trade. Local 736’s membership contains hundreds of Canadian Welding Bureau certified members who have been trained by the Iron Workers to perform welding work which is core to the trade, including the installation of structural, miscellaneous, and ornamental steel. Similarly, the regulation does not reflect the very large scope of rigging work performed by the Iron Workers in connection with the complex and hazardous movement of heavy machinery and equipment. However, both welding and rigging are areas that the Ontario Labour Relations Board has found on multiple occasions to be the proper work jurisdiction of Iron Workers as opposed to the work of other voluntary, and even compulsory, trades.

    Local 736 submits that the SoPs should reflect all of the work that members of the ironworker trades perform, including work that is detailed in the Training Standards and Apprenticeship Curricula. Attempts to exhaustively and precisely define, in advance, the exact boundaries and elements of a trade’s SoP will inevitably fail. Changing technology and new construction innovations will soon leave overly particularized SoPs outdated. Further, it is nearly impossible to capture every work function within a scope of trade. Local 736 is generally of the view that it is preferable to define the SoPs in general terms, which will provide flexibility for their interpretation and allow for any unforeseen circumstances and the recognition of the established practice of work jurisdictional assignments. Using the guidelines of the Training Standards and Apprenticeship Curricula will assist in this endeavor.

    Conceptually, the ironworker voluntary trades are easy to recognize; however, in practice, the work of the Ironworker (structural and ornamental) and Ironworker (generalist) trades are composed of elements that also arguably fall within the SoPs of various other compulsory and certified trades. On the other side of the coin, some core competencies of the Ironworker trade are not even mentioned in the Iron Worker SoPs (see welding and rigging examples above). There are undoubtedly overlapping skill sets and work functions between ironworkers and other trades, including but not limited to: construction millwrights; construction boilermakers; plumbers; electricians (construction and maintenance); sheet metal workers; construction craft workers; and general carpenters.

    Local 736 recognizes that the SoPs for compulsory and voluntary trades are not “watertight” compartments. In fact, our members often perform work on an interchangeable basis with members of different trades as part of “composite crews,” in particular, for example, in the performance of the installation, repair and maintenance of conveyor installations which is performed by equal numbers of ironworkers and millwrights working for the same employer performing all work functions interchangeably. Those arrangements have been tested by jurisdictional disputes before the Ontario Labour Relations Board and are the subject of binding and prospective orders requiring the future use of such composite crews. See the attached OLRB decision at Tab 1 of Industrial Trade Solutions and State Group Inc., [2014] CanLII 26330 (ON LRB) for a recent example of an OLRB decision requiring a composite ironworker/millwright crew to perform certain work at Toyota’s Cambridge plant and exclusive use of Iron Workers’ to perform other work.

    As a result of the outdated and lack of comprehensive coverage or scope, Local 736 strongly encourages the College to undertake a major comprehensive review and update of the SoPs for each trade.

  5. Classification or Reclassification of Trades as Compulsory or Voluntary
  6. With respect to classification reviews, Local 736 submits that the SoPs are wholly insufficient, particularly where there is an absence of a clear statutory or regulatory directive that the performance of work that could arguably be claimed to fall within a compulsory trade may lawfully be performed by others when that work also falls within a voluntary trade. The respective voluntary trade SoPs were never drafted with the intent that the work tasks set out in them were exclusive to that voluntary trade. There are many areas of overlap. This presents obvious problems when a trade review is initiated to designate a trade as compulsory.

    Local 736 believes that the entire SoP for a compulsory trade ought not to be enforceable or subject to enforcement where the work elements are also properly included in the SoP of one or more voluntary trades. There are significant areas of overlap between the voluntary and compulsory trades and it is Local 736’s experience that unionized compulsory trades have used their compulsory status under the legislation to obtain exclusive work jurisdiction over tasks that are also preformed by voluntary trades, including the Iron Workers. The OLRB has, with detailed reasons, consistently rejected dispute arguments that previous legislation has conferred any exclusive legal right to a particular craft to perform work also performed by other trades. See at Tab 2 Lockerbie & Hole Eastern Inc./Adam Clark Company Ltd., 2008 CanLII 37561 (ON LRB) where the Board upheld the Iron Workers’ claim to the rigging and installation of multipurpose supports that carry materials of multiple trades, including compulsory trades.  The dispute in this case was with the plumbers represented by the UA but the decision also records and reflects past assignments and OLRB cases where Iron Workers assembled and installed multi-purpose supports for electricians and sheet metal workers as well as plumbers.

    Compulsory trades do not have a monopoly on work that poses a risk of harm to the public, tradespeople or other workers. Some of the work performed by members of Local 736 is extremely hazardous work; our highly skilled and trained members perform that work safely and effectively. For the reasons outlined above, Local 736 submits that no new trade reviews should be conducted by the College until there is a major review of the SoP for each trade, making the assignment of various tasks more fair and more representative of work assignments that get made in the field.

  7. Process and Criteria in Ontario Regulation 458/11
  8. The Ontario College of Trades and Apprenticeship Act, 2009 and/or its regulations ought to be amended to make it absolutely clear that where a work element or task falls within the scope of a compulsory trade and a voluntary trade that the work may be lawfully performed by members of the voluntary trade.  Frankly, absent such an express change, no further compulsory trade status should be granted to any voluntary trade.  Otherwise, there will be chaos in the industry and, very probably, a race for compulsory status so that people can protect their right to continue to work and earn a living.

    If this change (recognition of the ability of members of voluntary trades to perform their own work even if it is also arguably covered by a compulsory trade) were to be codified it would reduce the otherwise grave risk that applications for compulsory status will have nothing to do with the public interest or public safety but instead will be attempts by certain trade unions - with certain of their employer partners – to grab work jurisdiction by claiming an exclusive legal entitlement to perform work in their SoP. 

    Local 736 has observed continued attempts by other unions to misuse their compulsory status and interfere with Local 736 members’ right to earn a living for reasons that have nothing to do with the public interest. Other trade unions already misuse the College and its classifications of certain work as compulsory to claim an exclusive legal right to perform that work, when it is, in fact, traditionally Iron Workers’ work. This directly affects the ability of Iron Workers and members of Local 736 to earn their livelihoods.   Thankfully, the OLRB has given short shrift to such arguments – to date – in its jurisdictional dispute decisions.  The decisions of the OLRB – as an expert tribunal in construction labour relations – should be expressly considered as a factor when assessing whether a voluntary trade ought to be granted compulsory status.

    The reasons voluntary trades are currently voluntary and compulsory trades are compulsory largely relates to the preferences of the unionized industry (unions and employer associations) for those trades. Historically, the Iron Workers have opposed compulsory status as it was not in their members’ best interests. However, the fact that the ironworker trades have been historically voluntary and not compulsory should not detrimentally affect the ability of our members to perform their traditional work.

  9. Decisions of the Ontario Labour Relations Board
  10. It is the view of Local 736 that the College should give a significant amount of weight and deference to the experience and decisions of the Ontario Labour Relations Board. SoPs do not drive work assignments in the real world. Rather, in the field, work assignments are driven by past practice, trade agreements, economy and efficiency concerns, skills and training issues, and collective agreement obligations. Increasingly, they are driven by the desire of employers to benefit from the skills of multiple trades by performing work assignments in composite crews with members of multiple trades performing the very same work (see Board decision at Tab 1).

    The OLRB deals with jurisdictional disputes between trades on a regular basis and its decisions ought to be factored into the scope of SoPs. The College ought to use OLRB decisions in a number of ways, and not simply with reference to exercising discretion in its enforcement matters.

    The College ought to: include work found by the OLRB to be within the representational rights of a trade union that represents workers in a specific recognized trade classification to be part of the elements of the SoP for that trade classification; consider the existing body of Board jurisprudence when considering trade classification reviews (in fact, the OLRB’s jurisdictional dispute decisions should be an express factor to consider when determining whether to make a voluntary trade a compulsory trade (and vice versa)); and consider the existing body of Board jurisprudence in considering enforcement.

  11. Conclusion
  12. The ironworkers’ Scopes of Practice are outdated and they further do not reflect the full breadth of work that Iron Workers regularly perform. It is in the public interest, including the direct interest of Local 736, for the College to undertake a major review of the Scope of Practice for each trade so that they are current and accurately reflect the work that members of the trade perform. Local 736 encourages the College to include work that is detailed in the Training Standards and Apprenticeship Curricula in its updated SoPs, as well as decisions of the OLRB. In fact, the OLRB’s jurisdictional dispute decisions should be an express factor when considering whether to make a voluntary trade a compulsory trade, and vice versa.

    Most importantly, the Ontario College of Trades and Apprenticeship Act, 2009 and its regulations ought to be amended to make it absolutely clear that where a work element or task falls within the scope of a compulsory trade as well as a voluntary trade, the work may be lawfully performed by members of the voluntary trade. This will ensure that a designated compulsory trade does not attempt to use that designation as a way of taking work that properly belongs to and is best performed by ironworkers.

    Local 736 would appreciate the opportunity to meet in person to elaborate on some of the points raised in this submission.

    We have attached for your review the following documents:

    Tab 1 Industrial Trade Solutions and State Group Inc., [2014] CanLII 26330 (ON LRB)

    Tab 2 Lockerbie & Hole Eastern Inc./Adam Clark Company Ltd., 2008 CanLII 37561 (ON LRB)

    We would be more than happy to provide any additional information or documents that you might find of assistance in this review process and we look forward to hearing from your office regarding in-person consultations.

    Yours very truly,

    James Hannah
    Business Manager
    International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736