Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-35

Name of organisation making submission: DR-35 Ontario Hairstylists Association

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

The Ontario Hairstylists Association defines the public interest as the shared concern amongst members of the public at large for the well-being of the populace itself. The well- being that the public interest is measured against includes feelings of personal health and safety, economic opportunity, and more broadly, quality of life.

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

At the broadest level, the College must serve all Ontarians, but the public it must most concern itself with are those members of the province whose health and safety and/or whose economic opportunities are directly affected by actions of the College. The College should aim to create an environment that eliminates unnecessary barriers to entering the skilled trades and encourages more people to consider a career in the trades to meet future labour demands. The public that should be served by the College includes the following groups: 1) the skilled tradespeople it represents; 2), the consumers with whom those tradespeople interact; and 3) the general public who interacts with the products of tradespeoples’ work. For example, when it comes to the interest of health and safety, the College should ensure no tradespeople are putting their own safety at risk when completing a task. It should also ensure the health and safety of the consumer - or member of the public - is protected when interacting with the work of a trades person.

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

In instances where there are conflicting opinions or interests, the College should use an evidence-based approach to evaluate the components of health and safety, and financial or economic concerns amongst the opposing interests. The College should act in a manner that is transparent and free of bias in order to evaluate these interests and make an impartial determination. The College should solicit input from those stakeholders who are impacted by the decision and then evaluate the input using a transparent, objective and evidence-based approach.

4. Is the College currently protecting the public interest?

While the College has adequately addressed the public interest vis-à-vis ensuring health and safety in the practice of the skilled trades, we believe there are issues with the College’s governance structure. In the College’s most recent strategic plan, it states its first objective is to “promote the College and build its membership”. Since the College’s annual budget relies on revenues generated by membership fees, it arguably has a vested interest in growing its membership by increasing the number of compulsory trades. By its own design, we fear the College’s self-interests could outweigh the public interest in regards to determining whether an individual trade should be considered compulsory or not. According to the Ontario Chamber of Commerce’s report Caution Work Ahead, the College lacks robust measurement and reporting of the College’s performance. In order to truly understand if the College is performing effectively in protecting the public interest, it should be required to report on its governance activities against suitable and evidence-based performance measures.

5. How should the College advance the public interest?

The College should take a fair and reasonable approach to advancing the public interest. For example, it is important that the College (working in cooperation, and not duplication, with other government and non-government bodies) help protect the public from undue harm that could result from the work of a tradesperson. At the same time, the College should ensure that the parameters created in order to practice a trade do not set any unreasonable hardship on skilled workers - which could lead to poor economic consequences for the workers, the trade sector and the public at large. For example, in the hairstyling industry, we believe that unreasonable hardship on stylists leads to the growth of an underground economy. In the hairstyling industry there are minimal barriers to prevent stylists from joining the underground economy. When stylists feel they are forced to go underground, the industry can no longer monitor such things as workplace safety and cleanliness. Further, we know that many salons are already experiencing difficulty recruiting staff. We believe the growth of the underground economy further exacerbates this problem. The College also has a duty to promote the skilled trades and break down barriers of entry to employment. In the Hairstyling industry we have anecdotal evidence of reluctance to hire apprentices because of the challenges now present in the journey person candidate process.

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.

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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.

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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.

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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?

Respondent did not provide a response to this question

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?

We believe an objectively set, evidence-based bar must determine what trades are compulsory or not. First and foremost, consideration must be given to the amount of harm that could be caused by an unqualified person performing the tasks associated with his or her trade. We believe the additional burden of compulsory certification can only be justified as in the public interest when it can be objectively demonstrated that the health and safety of either the tradesperson or the general public could be jeopardized by improper execution of the work. The College should determine what level of harm reasonably separates these two categories based on research and evidence. A compulsory trade should be one that requires diligent regulatory oversight due to the risk it poses to the public interest and the College’s mandate to serve and protect it. Voluntary trade qualification should consist of trades that do not pose a serious risk of harm to the general public, but its practitioners should be encouraged to seek certification with the College. The other roles and responsibilities of the College - everything from trade promotion to definition of scope, etc. - can all be accomplished irrespective of whether a trade is compulsory or voluntary.

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 categories of compulsory and voluntary, if properly determined and implemented, can serve the public. However, the Ontario Hairstylists Association does not believe the classifications are being implemented in a fair or consistent manner that takes current realities into consideration. For example, in Ontario, a hairstylist is a compulsory trade but a hazardous waste worker and a railway car technician are not. We believe there is a lack of rationale as to what trades fall into compulsory versus voluntary classifications today. It is clear that hairstyling looks nothing like the majority of other trades currently categorized as compulsory. Further evaluation is needed.

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, we feel it is reasonable to assume some aspects of trades are inherently hazardous. The College should have a transparent, objective and evidence-based approach to determining what aspects are considered hazardous in a given trade.

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?

Many trades have core aspects that could be partitioned out and classified as harmful or non-harmful to the public. However in the Hairstyling industry, we believe no aspects of the trade represent a risk to the public and therefore “core elements” do not apply.

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.

Respondent did not provide a response to this question

21. How should expert opinion be obtained?

The College should solicit input from a number of experts in a bias-free and transparent environment. Selected experts should be recognized specialists in the trade or matter for which they are providing testimony. Every step of the process should be made public and should be objective. Should there be conflicting interests on a matter such as classification, the College should take recommendations on expert witnesses from each party. Once the experts have provided their opinion, a process should be in place for interested parties to provide a response.

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

Yes, we believe the criteria set out in O.Reg. 458/11 is consistent with the public interest. However, we believe the College should be more explicit in measuring these criteria against the public interest. For example, the regulation could be adjusted to include the public interest as its own criterion or to amend the language so that each criteria is considered through the lens of the public interest. The decision-making process itself should be based on impartial evaluation of evidence, completeness of data, consistency and consideration of precedents.

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

While the College lays out a number of criteria that the review panel takes into consideration when evaluating trade classification reviews, it does not appear to set out any measurements in terms of data or evidence required. In addition to this, the criteria and process seem to only take into consideration those trades aiming to become compulsory. The process should be adjusted to consider compulsory trades that may have a claim to voluntary status. While the criteria may remain the same, how it is used and the evidence provided to support it, would likely be measured differently especially in cases where there may be a lack of data.

24. Are the existing criteria the right criteria?

Yes, we believe these are the right criteria, with the addition of public interest as stated in our answer to 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?

Respondent did not provide a response to this question

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

Respondent did not provide a response to this question

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.

Respondent did not provide a response to this question

Section E - General Response and Comments

28. Please provide additional comments below, if any.

Process to launch a review Currently the trade classification review process is posted on the College’s website with the process starting at the Trade Board. What is unclear to stakeholders is how, and if, representatives from a certain trade can request a review with their respective Trade Board. The Trade Board should be held to certain standards when considering such a request. There needs to be clarification around what criteria the Trade Board is looking for at these initial stages and how the Trade Board will take this criteria into consideration. On what basis would the Trade Board move forward on such a request and how would they make a decision? There needs to be a transparent process if trade representatives make a request for a classification review with its respective Trade Board. Conflict of interest While the OCTAA provides protections against conflicts of interest in the formation of trade classification review panels, we believe some additional criteria should be added that gives the Board clearly defined powers to investigate and rule on conflict of interest concerns.