Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-89

Name of organisation making submission: DR-89 Residential Framing Contractors Association of Metropolitan Toronto and Vicinity

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

Please find below the submissions of the Residential Framing Contractors Association of Metropolitan Toronto and Vicinity in response to the Ontario College of Trades (the “College”) Consultation Review. It is with pleasure we provide these submissions containing our views on how to improve the current structure and processes of the College. Who We Are The Residential Framing Contractors Association of Metropolitan Toronto and Vicinity (the “RFCA”) is an employer organization representing construction members performing residential framing work. Founded in 1981, the RFCA currently has 35 members that collectively engage between 1000-4000 pieceworkers at any given time. The RFCA is the accredited employer association representing members performing residential framing work in the low rise residential home building industry. This means that it is the only employer organization which may lawfully bargain with the Labourers’ International Union of North America, Local 183 (“Local 183”) on behalf of its member employers, all of whom are bound to Local 183. The RFCA was accredited by the Ontario Labour Relations Board in 2004. The bargaining unit description for which the RFCA was accredited by the Ontario Labour Relations Board is as follows: All employers of employees for whom [Local 183] holds bargaining rights performing the work described below in the residential sector of the construction industry, in and out of Ontario Labour Relations Board Areas 8 and 9, and Simcoe County, save and except the work performed under [certain other listed collective agreements]. The work covered by this accreditation certificate consists of work performed by: carpenters, carpenters’ apprentices and construction labourers engaged in the construction of all phases of housing including the preparation of footings, the fabrication, renovation, alteration, erection and finishing thereof, exterior trim and similar work for whom [Local 183] has bargaining rights while working in Ontario Labour Relations Board Area Numbers 8, and 9 and Simcoe County, save and except those persons above the rank of non-working foreman and office, clerical and engineering staff and save and except employees performing work under [certain other listed collective agreements]. The above description applies to all residential housing construction including single and semi-detached houses, row houses, maisonettes, townhouses and all non-elevated housing of not more than four (4) storeys in height (basement plus four (4) storeys). Subsequently, the RFCA and Local 183 entered into a series of collective agreements containing the following scope clause: "1.01 The Employer recognizes the Union as the sole and exclusive Bargaining Agent for all employees of the Employer, including carpenters and framers and their respective learners and improvers, construction labourers, and pieceworkers as defined in Schedules “A”, “B” and “C”, engaged in the construction of all phases of housing including the preparation of footings, the fabrication, renovation, alteration, erection and finishing thereof, exterior trim, and similar work, save and except those persons above the rank of foreman and office, clerical and engineering staff, while working in and out of the following Geographic Areas of the Ontario Labour Relations Board Area Numbers 8, 9, 10, 11 and that portion of Board Area 12 which is west of the Trent Severn Waterway and 18 provided that the requirements of Letter of Understanding No. 6 are satisfied." Collectively, the members of the RFCA generate approximately $250 million in revenue for the Ontario economy each year. Overview Comments The members of the RFCA operate in a highly regulated industry. From health and safety laws to building code requirements, there are multiple regulatory regimes with which the RFCA’s members must comply every day. These existing regimes ensure the product they supply (framing of residential structures) is provided in a way that (a) ensures quality, well-made products are provided to consumers and (b) that those products are provided in a manner that protects the health and safety of pieceworkers and the public. As with many aspects of the construction industry, the residential sector of the construction industry is heavily unionized. As with other heavily unionized sectors, this creates the possibility of conflicts between unions seeking to increase their respective claims to perform work. Such conflicts have historically been addressed by the Ontario Labour Relations Board. Over a number of decades, both a body of caselaw and an approach to jurisdictional disputes have developed to create a reasonably predictable landscape for construction industry parties (both employers and trade unions). It is the RFCA’s position that however the mandate of the College is ultimately carried out, it is imperative it not be done in such a way as to disrupt an industry with significant history and longstanding bargaining relationships. Put another way, the RFCA submits that the work of the College must not expand beyond its core mandate(s) and must not be structured in such a way that its processes create conflict with existing regimes, or can be used to destabilize the existing workings of the construction industry. To that end, the RFCA submits that, first and foremost, the College should focus on its mandate of training and on promoting the trades. This will ultimately be to the benefit of all members of the public. To the extent that the College addresses the issue of the ‘compulsory’ nature of the work of one or more trades, the RFCA submits that such an analysis should focus on specific tasks or activities that create an inherent and elevated risk of harm to the public, and not on the overall work of a specific trade. To create or administer a scheme which focuses on the breadth of activities listed in any SoP of one trade or another creates precisely the kind of conflict that the RFCA submits must be avoided. Conflicts and resulting costs, without providing any corresponding benefit to the public, let alone tradespeople. Instead, the focus should be on specific tasks or activities that create an elevated risk of harm and, where such elevated risk of harm is not already addressed through an existing scheme (such as the Occupational Health and Safety Act). The additional training and certification requirements mandated by a ‘compulsory’ designation could be appropriate if they can also positively demonstrate that reclassification will, in fact, address the identified harm. Unfortunately, this cannot be presumed to be the case. This focus will ensure that: (a) there are minimal barriers to individuals entering the trades (increasing the supply to the public and ultimately making product most economical); (b) anyone performing ‘compulsory’ tasks or activities will need to hold the requisite certification to do so; and (c) the College system is not open to abuse or manipulation from workplace parties seeking to use the system to pursue other objectives. Positions on the Questions Posed in the Review Consultation Guide: The RFCA has had the opportunity to review the submissions made by Local 183 to the Dean Review and wishes to note its agreement with and support for their submissions. In addition, the RFCA wishes to provide the following submissions and responses to the questions asked in the Review. The Public Interest in the Review “Public interest” is not a static concept and must be considered in context. The Ontario College of Trades Apprenticeship Act (“OCTAA”) states that the College “has a duty to serve and protect the public interest in carrying out its objects and functions under this Act.” [Footnote: OCTAA s.10.] When examined in the whole and in context, the College’s fundamental objects relate to training, the promotion of trades and regulation of its members. Its objects are not to regulate entire industries or to usurp the jurisdiction of other governmental agencies. In that context, the RFCA submits that the public interest involves ensuring that there is a steady flow of well-produced, economical goods and services (including increasing pieceworker access to careers in the skilled trades), and that such goods and services are produced in a manner that ensures the safety of members of the public, the pieceworkers, and the environment.

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

While “the public” certainly consists of pieceworkers (current members of a trade and those seeking to become members of a trade) and members of the public at large (such as consumers), it also includes businesses and employers such as the RFCA’s members. While the RFCA’s members are small businesses, they are a group of employers engaging a significant number of independent pieceworkers making a substantial contribution to the Ontario economy. Indeed, the federal government has described small business as “the lifeblood of the Canadian economy.” [Footnote:] These small business owners have invested significant amounts of time and money building enterprises that engage Ontarians and boost the Ontario economy. As noted above, these employers are already subject to multiple levels of government regulation governing the quality of the work they perform and the manner in which they perform it. It is not in the public interest (on any interpretation of ‘the public’) to create a system which will add to those many levels of regulation without providing any new, separate and tangible benefit to the public. Put another way, creating additional obligations (including those which may conflict with existing legal and collective agreement obligations) may fundamentally undermine the RFCA’s members’ ability to continue to operate their businesses. These are businesses in which many of them have invested for decades, in order to provide services to the public and continue to provide work for pieceworkers (many of whom they have engaged for decades and made substantial investments to train). Importantly for the RFCA , these additional obligations also have the potential to fundamentally undermine its ability to continue working with the bargaining agent it and its members have negotiated with for many years. This cannot be in the public interest.

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

The College should avoid those conflicts wherever possible by fulfilling its mandate in as narrow a manner as possible. Where the issue of opposing interests cannot be avoided, the College’s processes must be fully and completely transparent so that its decisions instill the greatest degree of public confidence. The College should also ensure that when dealing with opposing interests in its decision making, the conflicts are approached in such a manner as to avoid impacting established labour relations patterns (see Question 27). All of that said, as set out below, it is the RFCA’s position that a trade in and of itself should not typically become compulsory, but rather specific tasks or activities which pose an elevated risk of harm to the public that cannot be ameliorated by any other existing regime should be considered for compulsory certification, similar to the controlled acts in the health profession. With that approach, there would be limited opportunity for overlapping and opposing interests as there would not be trades attempting to claim specific compulsory reclassification of their entire trade in an attempt to exclude members of other trades from performing any of those tasks that fall within their SoP to gain advantage.

4. Is the College currently protecting the public interest?

No. To the extent it is creating duplicative regimes and failing to focus on its mandates of training and promoting the trades, the College is not protecting the public interest. In this regard, the RFCA adopts the submissions of Local 183.

5. How should the College advance the public interest?

As noted in Local 183’s submissions, the College’s central and principle mandates are, and should be, training and promotion of the trades. In focusing upon and fulfilling those important mandates, the College will help ensure that individuals purporting to hold the skills of a particular trade do, in fact, have those skills. Further, it will protect the public interest by ensuring that there are sufficient skilled tradespersons to both fulfil the needs of members, and to provide efficiently produced, well-made, and cost competitive products for consumers. It is in the interest of the RFCA’s members (as a constituent member of ‘the public’) that their pieceworkers are skilled and well-trained, and that consistent standards be in place that employers can dependably rely upon in hiring new pieceworkers. It is not, however, in the public interest (including but not limited to that portion of the public comprised of employers) that additional levels of enforcement or bureaucracy be added to what is already an extraordinarily well-regulated industry, without any tangible benefit whatsoever. The submissions of Local 183 have laid out the various enforcement regimes that exist to protect the public (including pieceworkers and tradespersons) which together, already provide significant levels of protection and enforcement, at significant cost. The health and safety regime alone places (appropriately) strict parameters around how work on a construction site may be performed and what safety training and programs must exist to protect the health and safety of all individuals on a site. Further, there already exists an extensive enforcement regime which, combined with the obligations under the Occupational Health and Safety Act, governs, in many respects, much of what the RFCA’s members and their pieceworkers do on site every day. For example, the Ontario Building Code (“OBC”) is a mandatory document used by many trades, including framers, during the course of the construction of new buildings or making alterations and changes to existing buildings. The OBC sets minimum standards for construction in order to minimize the risk to the health and safety of the public – those who reside in, or even come within the vicinity of a building. In every municipality in Ontario, a Chief Building Official and building inspectors are responsible for enforcement of the OBC. Accordingly, RFCA members and those pieceworkers who they engage, must build houses in accordance with approved drawings and OBC standards. To make sure of this, the OBC requires regular inspection of buildings. Additionally, the Technical Standards and Safety Authority (“TSSA”) delivers public safety services related to fuels (among other things) on behalf of the Ontario government. The TSSA places and enforces very strict rules on RFCA members regarding the manner in which they store and use fuel on a construction site. The RFCA’s members clearly operate in a highly regulated environment which, at times, makes it challenging enough to complete the work that needs to be performed to carry on a day-to-day business. It is the RFCA’s position that if yet another level of regulation or bureaucracy is to be added to the many existing regimes, it must: a) provide a meaningful protection of the public interest that does not already exist; and b) be structured and enforced such that it minimally impairs the operations of the RFCA’s members’ businesses while achieving appropriately limited and legitimate purposes. To the extent there is any suggestion the mandate of the College is to enforce health and safety standards, the RFCA respectfully submits such suggestion is without foundation. The College’s overarching ‘public interest’ mandate is not one without any limits or anchor. The College must protect the public interest in carrying out its objects and its functions under the OCTAA. The OCTAA is primarily a training statute. As such, in terms of its approach to protecting the public interest, the RFCA submits that such protection should be, and must be, centred on training and promoting skilled trades. To the extent the College interprets its powers or mandate beyond these legislatively defined boundaries, not only has it strayed from its purposes under the OCTAA, it inevitably treads upon existing regimes with the real possibility (and likely result) of regime conflicts. Conflicts in regulatory regimes do nothing to advance the interests of any member of the public – be they consumers, pieceworkers, employers or trade unions. From the perspective of consumers, the cost of services inevitably rises with each regulatory regime to which suppliers of those services are subject. Where there are separate and independent objects and purposes of those regimes, such costs are not only unavoidable, but generally necessary. However, where there is duplication in the objects of the regulatory regime, there is simply no justification for the attendant cost increases passed on to the consumer. When two or more of those regimes potentially provide conflicting directives, not only do costs escalate without any increased benefit, but it creates instability, work disruptions [Footnote: See discussion of the problems faced by Stacey Electric contained in “An Overview of the Ontario Labour Relations Board’s Approach to Enforcement of Trades Qualifications”. Prepared by Charlene Wiseman and L.A. Richmond for the Dean Review Consultation] and ultimately disincentives for new suppliers to enter the market, thereby reducing choice for consumers. From the perspective of members, or potential tradespeople, it is not appropriate for them to have to fund competing and potentially conflicting regulatory regimes, one of which could actually interfere in rather than enhance their ability to perform the work of their trade. Through tax dollars, tradespersons already fund health and safety and other existing regulatory systems. The addition of another regime, for which tradespersons pay directly, which in any way duplicates services already provided, defies justification. Finally, from the perspective of the RFCA’s members, any regulatory regime which duplicates services already provided, or creates the potential for conflict between existing legal obligations, can be nothing but detrimental and has no appreciable ‘upside’. This is not protecting the public interest (on any version of the concept) but rather, it is creating barriers to the efficient provision of cost-competitive, quality services.

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.

RFCA members are tasked with framing houses in a safe and productive manner. To make sure this happens, the work of our members is performed in accordance with blue prints and the standards set by the OBC, OHSA, and TSSA, among other protective regimes. At present, the SoPs laid out in OCTAA Regulation 275/11 do not have any impact on the way in which work is performed, or on the way in which a framing contractor conducts its business. The tasks performed by a framer in his or her day-to-day activities fall within the SoPs of non-compulsory trades such as General Carpenter and Construction Craft Worker. In terms of tasks, those essential to members of the RFCA are: reading and applying blue prints, drawings and layouts; operating hand and power tools; laying out, constructing and installing window systems; rigging and hoisting materials and equipment; erecting and dismantling scaffolding; and installing, hoisting and erecting structural framework. Together, these tasks form the essential phases of framing a house. Moving forward, the way in which SoPs are used and defined can potentially have a significant impact on RFCA members. For instance, if the specific tasks outlined above could only be performed by one trade, it would undoubtedly have a detrimental impact on the way in which RFCA members perform work. For this reason (as discussed below), the RFCA submits it should be tasks that are classified as compulsory, not trades. Further, any trade should be able to perform the trade, provided they are appropriately qualified, save and except the analogy to a controlled act (specific task of a trade). Lastly, in our view if a specific task is to be given a compulsory classification, the threshold for receiving this classification must be high and must be necessary to protect a demonstrated public interest.

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

The RFCA does agree that trades may have both core and peripheral elements. However, there may be little consensus between trades as to what elements are core or peripheral. Further, in the context of the manner in which the RFCA submits ‘compulsory’ aspects of work should be identified (based on specific tasks or activities, not on the identity of which trades’ members perform them), the concepts of ‘core’ vs. ‘peripheral’ elements has little impact. For instance, material handling associated with scaffolding could be claimed by both Carpenters and Labourers as ‘core to their trade’. The RFCA submits that the act of attempting to define what is the ‘core’ vs. ‘periphery’ of a particular trade would not only be extraordinarily difficult (as there will be very little agreement as to what falls within the core of a particular trade to the extent it purports to exclude another trade), but further, it does nothing to address the fundamental training and trades-promotion mandates of the College and would cause extraordinary conflict between some trades. In the RFCA’s submission it would be a Herculean effort, but ultimately a fruitless one. The RFCA otherwise relies on the submissions of Local 183 on this issue.

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.

This depends upon the manner in which the SoPs will ultimately be used. If they are used for the purposes that are consistent with the College’s objects and purposes, promoting the trades (“right to title”) and governing training, the RFCA submits that an SoP should include all of the tasks or activities which form the basis of trade competency (and therefore training). If, however, there is any consideration of using SoPs to suggest that members of a certain trade must be identified by the tasks or activities listed in an SoP, the answer is quite different. Ultimately, it is the RFCA’s position that it should not be a trade that is compulsory, as it is never going to be the case that all of the tasks or activities of a trade create the potential for harm to the public interest. Rather, some trades may have specific tasks or activities listed in their SoPs which by their nature, create the risk of harm to the public that is not already addressed by another regulatory regime. By focusing on specific tasks as the subject of compulsory certification, rather than a trade, it will not only accomplish the goal of protecting the public interest insofar as those tasks create the risk of harm to the public interest, it will do so on a manner that avoids the overlap conflict that has raised so many legitimate and substantial concerns within the construction industry particularly. By designating a task or activity as compulsory (following objective consideration of substantial, empirical evidence as discussed below) it ultimately becomes irrelevant which trade’s members perform those tasks as there would be no limits on the number of trades which may have members performing those task or activities; all that matters is that whomever is performing those tasks or activities have obtained the required skills and training to perform that work in a manner that protects the public interest. In that type of scheme, the full content of the SoPs can focus (appropriately) on the overall scope of training and competency relevant to members of a trade. Provided it is only specific tasks or activities that are granted compulsory certification, the RFCA has no objection to the SoPs themselves constituting a comprehensive list of tasks to guide training or occupational standards.

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

In addition to the comments below, the RFCA adopts and relies upon the submissions of Local 183 with respect to a review or change in a SoP. The RFCA emphasizes it is critical that there be consistency in how the SoPs are crafted as between trades, and that any determination of the content of SoPs must be based on objective, empirical data, and not on impression, assumption or anecdotal evidence. There is currently a significant disparity as between the level and nature of detail in the SoPs of the various trades, resulting in the SoPs providing little useful guidance to workplace parties. Once the underlying purpose of the SoPs is determined (and the RFCA submits that this should be for purposes of training only, not to drive whether or not a trade is considered ‘compulsory’), a review of all existing SoPs must be carried out. Such a review should be carried out by a neutral, arm’s length body which has no vested interest in the outcome of any particular SoP consideration; it is imperative that any work of the College which can or may drive more individuals into the College’s auspices not only be transparent and neutral, but must be seen to be transparent and neutral. This is because of the College’s unique position of not only governing its members, but being able to expand the scope of that membership. The RFCA respectfully submits that this is a combination which cannot help but result in conflicts of interest and which inevitably undermines the public’s confidence in the system. As such, any process which may, directly or indirectly, result in greater powers to or membership in the College, must be carried out by an arm’s length body. That body must have the resources and jurisdiction to both receive submissions from interested parties, but also to commission its own relevant research to ensure that all relevant points of view are expressed. Further, its decisions must be made on the basis of objective, empirical evidence and not assumptions or anecdotes. Similar principles should be adhered to in the determination of what tasks or activities are considered ‘compulsory’. To the extent such a determination creates greater barriers to participation in that task or activity, creates greater obligations on the part of an employer, creates greater obligations on the part of pieceworkers and ultimately increases membership in (and revenue for) the College, there can be no public confidence in a system which can be viewed as self-interested or open to manipulation. The RFCA fully endorses the Independent Review Tribunal model suggested by Local 183 in its submissions.

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

No. As outlined above, it is the position of the RFCA that the SoPs should be used as a framework for the provision of training, they should not as a basis to conclude a trade should, or should not, be compulsory. As such, the SoPs cannot (and should not) be a basis for all functions of the College.

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

Emphatically, no. First off, as outlined above, classifying an entire trade as mandatory or voluntary is an inefficient manner of ensuring higher levels of training and certification are required to perform certain tasks; tasks which may pose a higher risk of harm to the public where that risk cannot be mitigated through any other existing measure. It is killing the proverbial fly with a sledge hammer. The impact of declaring any task or activity as compulsory is clear: a) it creates barriers to entry for tradespersons; b) it restricts the supply of tradespersons to the market; c) it creates potential legal liability for employers; and c) it negatively impacts the cost of goods or services to consumers. In light of these clear and unavoidable impacts, there is simply no basis in logic to suggest that if one or more tasks or activities traditionally performed by a member of a certain trade should be considered ‘compulsory’ that all tasks or activities of that trade should be compulsory. Put in perspective, this would mean that if members of a compulsory trade perform a task or activity on an occasional basis, perhaps for just minutes per day or per week, no one else could perform that task without becoming a member of the compulsory trade (with the attendant training and certification requirements). The folly of this approach was well demonstrated in the Stacey Electric scenario. Work that could be performed by members of more than one trade (the installation of conduit, cable trays and ground rods) was being performed by members of the Labourers Union. Notwithstanding that no one could credibly argue that there is an elevated risk of harm to the public in ‘laying cable trays’, because that task was listed in the SoP for ‘Electrician’ and it was not electricians performing the work, OCOT inspectors got involved. Respectfully, we submit that they not only disregarded years of well understood work practices, but did so with no apparent, benefit to the public interest. It is entirely non-sensical to think that it is useful, efficient or in any way necessary to the public interest to have a system where just because a member of a trade does one high-risk task or activity that everything that members of that trade do requires similar levels of training, certification or enforcement.

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.

Yes. As noted above, it is the RFCA’s position that not only could the College benefit from such a list, a focus on compulsory activities (as opposed to compulsory trades) is the only reasonable way for the College to fulfil its mandates without needlessly causing conflict between members of trades, and creating conflicting regulatory regimes which will inevitably make the provision of goods and services less economical for the public.

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

Overlaps in SoPs are where there are tasks included in the SoP of one trade that are also included in the SoP of another.

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

No. RFCA members frame houses. They do this with the trades and tasks outlined above (question 6). Currently, many trade’s SoPs overlap with those of the trades we engage but, as it stands, we are able to complete work efficiently. For instance, our practice currently involves tasks performed by concrete and drain workers, forming workers, masonry workers, framers, electricians, roofers, and plumbers, among others. Our concern lies in the potential that if certain trades, and their corresponding SoPs become compulsory, it will greatly reduce our flexibility in effectively and efficiently managing our construction sites. Even worse, would be a situation where this occurred with no added benefit to the public. Not only would this increase costs due to increased (and likely unnecessary) regulation and construction timelines, it would also restrict the ability of RFCA members to obtain and support the workforce they need to do the job. Needless to say, this is not in the interest of consumers, tradespeople, or employers.

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?

This approach should be irrelevant. If the focus was on tasks or activities which create an elevated risk of harm to the public that cannot be ameliorated through an existing regime, this analysis is not required as a trade would no longer be considered compulsory, but rather individual tasks would be compulsory, regardless of who performs them.

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?

As noted above, in the RFCA’s view, it is not a trade which should be compulsory or voluntary, but rather specific tasks or activities which should be compulsory with members of any trade able to perform that work, provided they have the proper qualifications to do so. The RFCA agrees that where a task or activity creates an elevated risk of harm, and that risk cannot be addressed through an existing system (such as Occupational Health and Safety regulations or building inspection) it is not unreasonable to require an elevated training and certification requirement to perform such tasks or activities (i.e., declaring them ‘compulsory’). However, the identification of certain tasks or activities as compulsory should not mean that any trade having an SoP that contains one or more of those tasks or activities must or should be compulsory. The RFCA submits that to focus on an entire trade being compulsory or voluntary does not do anything to promote the public interest (it undermines the public interest for the reasons outlined above under Question 11).

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?

No, for the reasons set out above.

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, however this does not justify every task of that trade being 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?

Not only could compulsory certification relate only to specific tasks or activities, in the view of the RFCA that is the only workable and practical approach. This approach would allow the members of the RFCA (or any other construction employer) to focus only on ensuring they engage pieceworkers who (a) have the appropriate training for any tasks they may be required to perform (regardless of the SoP into which those specific tasks may fall), and (b) carry the appropriate credentials to perform the compulsory tasks that may be assigned to them. This could be done without having to circumscribe the efficient and reasonable assignment of other potential tasks to those pieceworkers. Such an approach would permit the RFCA’s members to continue to ensure that their pieceworkers are properly trained and qualified to perform the tasks of their work, and to assign the right pieceworker to the right task. This would provide all necessary protection to the public, without the creation of workplace conflict that would inevitably follow the declaration of an entire trade as compulsory.

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.

It is the RFCA’s position that a different model should be considered. As noted in your Consultation Guide, interested stakeholders have expressed concerns with respect to: the process for requesting a classification review; the lack of sufficient empirical evidence; insufficient clarity concerning criteria and proof; and the ability of review panels to consider information from sources other than the submissions received. Indeed, in its decision in the recent Sprinkler and Fire Protection Installer Classification Review the majority expressed clear concern regarding the quality of the evidence upon which it was required to base its decision: "[22] The difficulty is, even for these few incidents, we were provided with very little specific evidence with respect to them – who installed the systems (certified sprinkler fitters, or even sprinkler fitters at all) and why they were installed defectively (a design problem, a failure to properly inspect, etc.) – most importantly how frequently any such problems occur (what percentage of the total installations of systems do these incidents actually represent?). This was pointed out by the Skilled Trades Alliance, CLAC and the Home Builders Association – that there was simply not very much evidence (if any) provided by the proponents that the existing status of sprinkler fitters (i.e. voluntary, not compulsory) has contributed in any way to making the dangers of fire or the efficacy of sprinkler systems in fire prevention any greater or any less. [23] This lack of clear evidence of a connection has troubled us significantly. Leaving aside the question of onus – those requesting the change should convince us that there is a need for a change, which was forcefully argued by CLAC, the Skilled Trades Alliance and the Home Builders Association – there has been a lack of specific evidence connecting making the trade mandatory and the obvious danger of fires and the obvious efficacy of sprinkler systems reducing that danger. Frequently in the ratio reviews, panels when in doubt with respect to the impact of this criterion erred on the side of safety. Certainly the first responders (who have no apparent economic self-interest in who or how or at what price sprinkler systems are installed other than they function properly) have intervened to strongly support that the trade be made mandatory. [24] This argument also begs the question of exactly what kind of evidence is necessary or sufficient to support a change under this criterion. Must we wait until there is evidence of actual death, injury, harm or loss directly attributable to faulty installations or maintenance by someone not qualified before recommending measures intended to prevent such deaths, injury, harm or loss in the first place? If so, how often, how much? Where or how could such evidence even exist or be available? [25] As noted before, the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review. It was the thrust of the objections of the Skilled Trades Alliance, CLAC, the Home Builders Association throughout – that the reviews were intended to be evidence-based, and the proponents of change have failed (miserably in their view) to place adequate evidence before us to justify any change. As noted before, in their view, unlike ratio reviews, this was even more fundamental to trade classification reviews – where the decision was of a greater magnitude. Quite bluntly, there is much to be said for these arguments. It may be that future trade classification review panels will reject requests where the evidence is insufficient and does not adequately meet these standards." For the reasons outlined above, and given the consequences of the College’s decisions, the inherently conflicting nature of its mandate(s) and function(s), and the need for absolute public confidence – a new, arm’s length and entirely objective advisory board model must be adopted. The RFCA submits that the Health Professions Regulatory Advisory Council (“HPRAC”) provides an example of a viable and effective model (the “HPRAC Model”). [Footnote: An outline of this Model can be found in: Regulation of New Health Profession under the Regulated Health Professions Act (RHPA), 1991, Criteria and Process, HPRAC.] This is a model founded on advancement of the public interest and one in which the decision making process is thorough, transparent, flexible and evidence-based. The HPRAC lays out its criteria and process for determining whether or not it will recommend a controlled act ought to be regulated. The Minister of Health and Long-Term Care relies on recommendations from the HPRAC. The OCOT should rely on the independent source of evidence-informed advice policy relied upon in the HPRAC process as well. Under the HPRAC Model, assessment is completed through a two-part assessment: (i) In the first part of the assessment the HPRAC will determine whether the applicant meets a “risk of harm threshold” in order the be considered for regulation. (ii) In this part of the assessment, it involves a consideration of whether regulation is the most appropriate course of action or whether another risk mitigation approach exists.. This process is informed by a broad-based stakeholder consultation. This consultation could include: · Key interviews of stakeholders; · Research including: literature reviews; jurisdictional reviews and jurisprudence reviews; · Experts regarding trades regulation; HRPAC’s criteria examines whether compulsory certification is required in light of a risk of harm assessment and if certification would actually address the risk of harm. The RFCA also supports and relies upon the additional submissions of Local 183 on this issue.

21. How should expert opinion be obtained?

It is critical to the acceptability and credibility of the College that its decisions are not based on anecdotal evidence, supposition or fear-mongering, but rather on credible and objective information. Expert opinion must be obtained in a neutral and impartial manner. If it is funded by interested parties before an advisory board, there is inherent risk that it will be seen to be tailored to the interests of the party providing it. As is the case with the HRPAC Model, an advisory board should have the jurisdiction and resources to obtain objective, evidence-based and credible expert evidence independent of any party before it. Interested parties should be permitted to make submissions in respect of the evidence, but cannot be the sole source of evidence before a tribunal. The RFCA also supports and relies upon the submissions of Local 183 on this issue.

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

No. We submit that the test must be simplified, while at the same time met only with the provision of sufficient evidence-based information. At present, the lack of evidence based support is one of largest gaps in the College’s process. We also respectfully submit that the seven criteria do not in fact focus on the protection of the public interest. The public interest could be better protected by reducing the seven criteria down to a two-step assessment, similar to that relied upon by HPRAC: 1) The first step should focus on one central and fundamental question: Does the task in question pose a risk of harm to the public? In order to establish this, it must be shown, through research and evidence, that there is a substantial risk of physical or mental harm to members of the public that could result from improper performance of the task. 2) If a risk of harm to the public is established under (1), the assessment will then continue to the second step. In this step, a fundamental consideration must be whether any potential harm is already ameliorated by an existing regulatory regime. If existing regimes are in place to protect the public, this should weigh heavily in favour of classification of the task as voluntary. This is in order to avoid the duplication of government services, while still protecting the public. By relying on a model such as this, a model which is focused on the public interest – the results achieved will best serve those interests.

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

The RFCA supports the submissions of Local 183 on this issue.

24. Are the existing criteria the right criteria?

The RFCA supports the submissions of Local 183 on this issue.

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?

No. The SoPs as currently drafted in no way resembles the way in which work is actually performed by RFCA members. For instance, the SoP for General Carpenter does not include all the work performed by a framer during the course of framing a house. This presents a problem for the RFCA and further, it highlights just how out of touch current SoPs are with realities on the ground.

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

No. In fact, many jurisdictional disputes arise because of a difference in how work is described, not whether it falls within the core or periphery of the work jurisdiction of a particular trade. For instance, as noted above, material handling associated with scaffolding could be claimed by both Carpenters and Labourers as ‘core to their trade’.

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.

It is the RFCA’s position that not only consideration, but significant deference, must be given to decisions of the OLRB in jurisdictional or work assignment disputes under the Labour Relations Act and that to do otherwise would cause chaos within the construction industry. The OLRB has developed many decades of jurisprudence regarding the disposition of work disputes between trades. The Board has established a consistent set of criteria, the interpretation of which has evolved over time to reflect the realities and changes in the industry: geographic, sector-specific, technological and otherwise. In addition, the Board has developed a streamlined process which enables jurisdictional issues to be resolved with relative efficiency. While certainly not perfect, the OLRB jurisdictional dispute mechanism and resulting jurisprudence has created a playing field which enables construction workplace parties to largely understand where they stand vis-à-vis one another, the result of which is ultimately fewer disputes arising. Further, and perhaps most importantly, entire sectors of the industry have developed based on common understandings about which pieceworkers, members of which unions, and which employers engaging those pieceworkers, would be permitted to perform certain work. To do anything other than give significant deference to decisions of the Board would place the entire industry in a state of flux and instability that would be immensely destructive to an industry that represents one of the economic engines of this province. The RFCA also relies upon the submissions of Local 183 on this issue.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

Respondent did not provide a response to this question