Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-87

Name of organisation making submission: DR-87 Ontario College of Trades Hoisting Engineer Trade Board

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

The Hoisting Engineer Trade Board (HETB) understands the term “public interest” refers to the health and welfare of the general public. We recognize that all persons in Ontario have a vested interest in the safe operation of mobile and tower cranes which promotes the well-being of workers, consumers, passers-by, Ontario’s infrastructure and the economy as a whole. As part of the public, the owners and users of the construction industry’s products also have an interest in high quality construction that is produced in a safe and efficient way. Properly trained skilled journeypersons play a central role in meeting this public interest.

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

First and foremost, “the public” refers to the people who reside in Ontario. The College serves their interests by supporting a reliable supply of skilled journeypersons who are a trained to perform their work to the highest safety and quality standards. Flowing from this principle, “the public” also includes, in particular, the men and women who learn their skills through properly accredited training delivery agents, and the companies and organizations that employ both apprentices and journeypersons.

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

The College should always be asking three questions, regardless of whether the context is determining the journeyperson-to-apprentice ratio, the classification of a trade as voluntary or compulsory, the approval of an apprenticeship program, or the enforcement of a scope of practice. These three key questions in order of importance are as follows: (1) How will this decision contribute to public safety and to safer workplaces? (2) How will this decision contribute to strengthening the skills and competence of Ontario’s skilled trades labour force? (3) Will this decision cause any net economic harm?

4. Is the College currently protecting the public interest?

The HETB believes the College has put its best foot forward to protect the public interest. Setting standards of practice, regulating apprenticeship programs and enforcing the licensing of those who perform work within the scope of a compulsory trade are all actions that serve the public interest. All of these tasks lead into the assurance that health and safety is the paramount concern of the College. Standards of practice define the responsibilities of journeypersons; apprentices are thoroughly trained to ensure they not only work safely, but also competently; and enforcement ensures risky and hazardous jobs are completed by properly trained and certified journeypersons.

5. How should the College advance the public interest?

The College should advance the public interest in four ways: First, by ensuring that occupational health and safety standards, apprentice training standards, and SoP’s are up-to-date and consistent with the needs of workers and employers; Second, by applying a rigorous public and worker safety test to applications to change the classification of a trade and by evaluating these applications through a process that is impartial, inclusive and transparent; Third, by enforcing the SoP’s of compulsory trades so that work which has been judged appropriate for inclusion in a restricted Scope of Practice is not undertaken by persons who are unqualified; Fourth, by communicating its goals and its plans to the public and to those who employ journeypersons and apprentices.

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.

The SoP in regulation for each of the three Hoisting Engineer trades clearly defines two critically important elements: (1) The characteristics of the equipment, which falls within the three categories: mobile cranes with hoisting capacities greater than 16,000 pounds, mobile cranes with a hoisting capacities of between 16,000 and 30,000 pounds and tower cranes. (2) The description of the journeyperson's duties in working with the cranes, which also falls within those three categories. In each of the Hoisting Engineer trades, the journeyperson's duties include "...maintaining and operating..." such cranes. An SoP should strike a critical balance between not being overly specific to the point it becomes cumbersome and not being overly broad such that it leaves many things open to interpretation. The HETB believes that the entire SoP of the Hoisting Engineer trade is relevant and important to the work of the trade.

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

While all trades are composed of a varying ratio of core and peripheral elements, the nature of the Hoisting Engineer trade is entirely core. Our trade is unique in that it is largely self-contained with no tasks that may be categorized as "peripheral." Every skill set a journeyperson is required to master is fundamental to what would be considered the "core" elements of our trade.

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.

The SoP defines all the core elements of the trade, like how to operate a crane. All of the "additional" skills of a Hoisting Engineer are a prerequisite for the core elements. What is important when it comes to the elements of the SoP is the participation and influence of the respective Trade Boards. As it concerns our trade, everything we do is part of our core, and the decision on what is core and should be defined in the SoP should be made by the competent individuals who have been appointed to the Trade Board. To complement the response to Question 6, the key elements of an SoP should define the tasks that are required to be undertaken by a journeyperson in a given trade and should broadly summarize the key learning objectives defined in the trade's apprenticeship training standard. The apprenticeship training standard is the appropriate document to further detail all of the relevant tasks, activities and functions in which an apprentice should be trained. In order to keep current with changes in terminology, evolving practices and technology, the apprenticeship training standard should be reviewed and updated on a regular basis to ensure it continues to fit well within the SoP.

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

Any review or change of an SoP should first be initiated at the Trade Board level based on the consensus of Trade Board members that a review or change of the SoP is justified. Once it is determined a review or change is justified and a revised SoP has been drafted, a formal application clearly indicating the reason(s) for the review or change should be forwarded to the Divisional Board who will either approve or deny the request. If approved by the Divisional Board, the Board of Governors should be given the final opportunity to approve or deny the request. Providing the Board of Governors approves the request, notice should be given throughout the College's stakeholder network for a formal consultation allowing individuals, groups or organizations the opportunity to comment. A review panel made up of one vice-chair selected from the OLRB, two independently selected Adjudicators selected from the Roster of Adjudicators (one employee representative and one employer representative), and two individuals from the Trade Board initiating the review or change (one employee representative and one employer representative) would be appointed to review all of the submissions. 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. Where possible, panel decisions to amend an SoP need to be made based on factual evidence. The Board of Governors should have faith that the panel carried out its duties while keeping the priority on serving and protecting the public interest. This process has two advantages. First, 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.

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

It is important to understand the technical process for developing an SoP. The process should begin with an Occupational Analysis. For many trades the basis for the Occupational Analysis will be the National Occupational Analysis (NOA) undertaken by Employment and Social Development Canada (ESDC). Based on the Occupational Analysis, a set of detailed Occupational Standards are developed. These Occupational Standards describe the competencies required in a trade. The Occupational Standards, along with the Occupational Analysis, also form the basis for the Training Standards which describe in detail the training and experience required to achieve those competencies. Lastly, the SoP is a concise statement of the tasks commonly associated with the trade. The SoP is based on the Occupational Standards. The tasks listed in the SoP are the tasks that an employer and the public would typically expect a person qualified in that trade to perform. The SoP ought to be the product which comes out of the end this technical process, not the beginning. There are some SoP’s that are current and which therefore support the College’s diverse regulatory functions. However, a scan of the SoP’s for some of the other construction trades suggest that they need to be reviewed before they can properly support the College’s diverse regulatory functions. Nevertheless, the College’s mandated regulatory duties for SoP’s that are current should not be held back by the SoP’s that are out of date.

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

Whether to enforce an SoP in its entirety depends on the trade. In the case of the three Hoisting Engineer trades, these are essentially a coherent set of skills that cannot be parcelled out because they are all linked to the operation and maintenance of particular types of equipment. It would be exceedingly dangerous for an unqualified worker to perform any of the tasks listed in the SoP. For Hoisting Engineers, therefore, the entire SoP should be enforced and should be enforced in all circumstances, without exception. This may or may not apply to other 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.

The concept of a distinct list of compulsory activities that may pose a risk of harm is attractive in the abstract, but in the construction industry, it is unworkable. The concept may have relevance outside of construction. However, in the construction industry, all work is inherently hazardous because of the nature of the construction environment and also because of the equipment and sometimes the materials that are used. This is especially true for the Hoisting Engineer trades. Identifying tasks that are hazardous presumes that tasks which are not so identified are not hazardous. That is a dangerous distinction to make. It should be avoided. For the construction trades a distinct list of compulsory activities that may pose a risk of harm is neither feasible nor desirable.

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

An overlap between SoP’s occurs when essentially similar tasks appear in more than one SoP.

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

At present, there is no overlap between the three Hoisting Engineer trades and other construction trades. The reason for this is that the skills and tasks of a Hoisting Engineer are tied to the types of equipment which he or she is qualified to operate. It is not feasible to carve out these skills and tasks into separate parcels. Consequently, overlaps in SoP’s do not have an impact on our daily work. From the perspective of the HETB, overlap between SoP’s in regulation is something the group has investigated in the past when a voluntary trade has made an application to undergo the classification review process. The investigation would be considered part of the Trade Board's process of due diligence to understand what impact, if any, could result from a voluntary trade becoming compulsory on the Hoisting Engineer trade.

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?

Including a task that is part of the SoP of a compulsory trade in the SoP of a voluntary trade should not mean that anyone can perform that task. That is an exceedingly dangerous proposition. It would increase the risk of injuries in the construction industry. The task was included in the SoP of a compulsory trade because of the risk of harm to the public or other workers.

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?

A trade should be deemed compulsory when there is sufficient reason to believe that there may be a risk of harm to the public, tradespeople or other workers or the environment either while performing work within the trade's entire SoP, or after the work is performed. The risk of harm can be different for different trades. For example, work in the Hoisting Engineer trade is inherently risky throughout the crane set-up and tear-down process, as well as during actual hoisting operations. There is no risk to the public, tradespeople or other workers on the job once the crane is removed from the jobsite. For other trades, the risk to the public may be just as great after the work is finished if the work is not carried out correctly. We believe it is important to assess the risk to the public, tradespeople and other workers not only while the work is being performed, but to accurately assess the risk to the public long after the work is carried out. We acknowledge that there is other legislation for protecting the safety of workers and the public. The Occupational Health and Safety Act (OHSA) protects workers. The Building Code and other standards protect the public. It is naïve, however, to believe that worker and public safety can be achieved solely by relying on these other statutes. Health and safety inspectors cannot be everywhere. Nor can building inspectors check every project or every aspect of construction work. The province regulates occupations because the competent performance of tasks is an essential aspect of safety. That is true for engineers and architects. It is also true for the compulsory trades. OHSA and the Building Code cannot do the whole job. The College has a duty to consider whether, in the interests of public and worker safety, some construction trades also need to be restricted to persons who have recognized 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?

The HETB agrees that the trades which are currently classified as compulsory should be compulsory. However, we also believe that there are other trades where there needs to be serious consideration given to compulsory status on the basis of serious risk of harm to public and worker safety. There has been significant delay in considering these cases. In some instances, applications for compulsory status were made long before the Armstrong Report (2008) and still have not been considered. Further delay is unacceptable. The College should proceed to consider these applications, as it is required to do so. Given the number of applications that are outstanding, the College should establish concurrent review processes. Alternatively, the College needs to have criteria to determine which applications should receive priority.

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?

Provincial policy now requires all construction workers to receive basic safety awareness training. For some types of construction work, this training along with the requirements in the OHSA regulations is sufficient to manage the inherent risks in construction work. For other trades, however, the risks to public and worker safety are on a much greater scale. For some of these trades, it may be sufficient to restrict only certain elements in the SoP. For other trades, such as the Hoisting Engineer trades, it is not feasible to parcel out elements of the SoP and the entire SoP needs to be compulsory.

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?

The distinctions that are suggested are between core and non-core tasks and between tasks that are very hazardous and those that are not. Any high hazard task should be considered part of a trade’s core. The question then is whether all of the core tasks should be compulsory or only some of the tasks. The answer to this depends on the trade. There may be some trades where it is appropriate to restrict only some of the core tasks to persons with a C of Q. However, there will also be trades for which all of the core tasks should be restricted to persons with a C of Q. The HETB believes that the Hoisting Engineer trades are in this latter category. That is inherent in the logic of the trade. You are either operating hoisting equipment or you are not. And if you are operating that equipment, you need to be qualified since the hazards apply to any aspect of operating the equipment. There should be no exceptions.

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 seems to be working well. Despite the concern that the public interest is not articulated in the criteria for review panel decisions, the College should keep in mind that the primary objective of the Trade Board is to serve and protect the public interest. As a result, the proposal by a Trade Board to undergo a classification review shall be mindful of serving and protecting the public interest, and ought to be based on as much factual evidence as is available to support such a recommendation. The HETB believes the adjudicative review panel approach worked well throughout the ratio review process. The review panel decisions rigorously applied the criteria specified in O. 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. 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 clearly turned on the assessment of the public interest in the reliable installation of sprinkler systems. The review panel received no evidence that compulsory status would cause economic harm and there was ample notice and ample time for any proponent to make that claim if there was evidence to support it. The process is comparable to the way the OLRB has operated for decades. It is a process that has served Ontario well.

21. How should expert opinion be obtained?

The most relevant individuals available to offer an expert opinion about a given trade are those who have been selected to represent the trade on the Trade Board. We also believe the College should value the opinion of third-party experts and reports, including coroner's reports that may recommend certain trades for compulsory status. 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 in O. Reg 458/11 are appropriate. However, O. Reg. 458/11 could be interpreted as implying that each of these criteria are of equal importance. The HETB believes that the public and worker safety criteria should be of overriding importance. The other factors should all be secondary. This is an important point that we wish to stress.

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

There are good sources of evidence on public and worker safety. These include coroners’ reports, WSIB data on accepted lost time claims and fatalities, relevant statutory authorities such as the Electrical Safety Authority and the Technical Standards and Safety Authority. The policies of other comparable jurisdictions are also relevant. It would be helpful if the WSIB coded occupations 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.

24. Are the existing criteria the right criteria?

As noted, we believe that the criteria should distinguish between primary and secondary criteria. Worker and public safety should be of primary importance.

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?

The SoPs in regulation accurately reflect the way in which work is assigned in the Hoisting Engineer trade. Thirty-two years have passed since the Hoisting Engineer trade was designated compulsory and it is common knowledge and practice that only properly trained individuals who hold credentials as a Hoisting Engineer are able to operate mobile and tower cranes as per Ontario Regulation 275/11.

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

In terms of jurisdictional disputes that deal specifically with the Hoisting Engineer trade, covering both Mobile Crane Operator 1 and 2 and Tower Crane Operator, the HETB is not aware of any jurisdictional disputes that have ever been litigated at the OLRB. This reflects the unique nature of the Hoisting Engineer trades.

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 HETB believes OLRB decisions covering jurisdictional or work assignment disputes under the Labour Relations Act ought to be considered a valuable resource. The College should consult these decisions for practical advice when dealing with jurisdictional matters and overlapping scopes of practice. There are several criteria the OLRB looks at when dealing with jurisdictional matters. The criteria include, but are not limited to, collective bargaining relationships, skill and training, consideration of economy and efficiency, employer practice, area practice, voluntary agreements between trades and employer preference. While these factors are relevant to both enforcement and to determining whether a trade ought to be reclassified, there are two points that need to be considered. First, the College’s test should focus on public and worker safety. It is possible that focusing only on public and worker safety would produce a different decision than taking account of the other OLRB factors, such as ‘employer preference’. Second, policy is not written in stone. The College’s ability to reclassify a trade from voluntary to compulsory should not be constrained by OLRB jurisprudence that was developed on the presumption that a trade is voluntary.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

The HETB shares concerns which have been expressed about the use of the Provincial Court as the tribunal for final determination of enforcement issues. The Provincial Courts are not expert bodies on employment matters. Also, parties that may be affected by an enforcement decision (e.g., unions) do not have standing in a Provincial Court proceeding. The HETB believe it would be better if the OLRB were the tribunal for final determination of enforcement issues. In the alternative, the College should issue a compliance order before it issues a fine. An affected party should have the right to appeal the compliance order to the OLRB, as is currently done under OHSA.