‘Risk of harm’ takes on new importance for trades certifications, scopes of work, and apprenticeship ratios
The new Ontario College of Trades (OCOT) regulatory structure is taking shape, resulting from Tony Dean’s review, further assessments by former labour minister Chris Bentley, and current legislation regulations and consultations, though there are many details still to resolve.
Lawyers Michael Sherrard and Patrick Ganley of Sherrard Kuzz LLP outlined some of the OCOT’s complex issues, decisions and variables at a presentation to the Ontario General Contractor’s Association (OGCA) Symposium at Blue Mountain in early April.
The complexity relates in part to the need to define a concept called “risk of harm” — which will be a key component in the decision-making, enforcement and adjudication systems for issues such as trade classifications, certification, scopes of work, and apprenticeship ratio reviews.
The lawyers outlined the reason for the changes, relating to controversies which erupted in the previous election campaign, including concerns from the Labourers’ Union about OCOT enforcement practices where members were being ticketed for certified trades work they believed to be within the labourers’ traditional scopes of practice (SoP).
There are also concerns in the industry among employer groups and unions that the entire scope of practice for a trade like carpentry may be classified as compulsory. This would present issues in the industry as many share the view that only some, if any, of the tasks listed in the scope of practice for carpentry should be classified as compulsory.
All of the trade classification reviews were put on hold as Tony Dean conducted his extensive review, and last December, the provincial government included the foundations of his recommendations as sections within omnibus legislation, Bill 70.
However, the legislative changes “do not address all of the recommendations in the Dean Report, and several will be addressed under the regulations which will accompany the amendments,” the lawyers said.
Challenging issues to resolve include:
Scopes of practice
Bill 70 requires the OCOT’s board of governors “to develop a policy for the review and establishment of SoPs,” the lawyers say. “This is a significant amendment given that the College is not currently obligated to conduct a review of SoPs, nor does it have a policy in place for doing so” – in fact many SoPs currently in the OCOT’s legislation date back decades.
The timeline for this challenging SoP review is uncertain. The scope of practice is very important for somebody getting into the trade, and in many case it may not be appropriate for the entire scope of practice to be compulsory for the trade.
Risk of harm
One key element in determining compulsory trades, apprenticeship ratios, and enforcement actions will be the definition of “risk of harm”. In February of this year, the OCOT has completed a public consultation process to develop this description to measure both day-to-day and systematic risks to workers in the trades and discuss issues related to enforcement generally.
The challenge is that “risk of harm” has never been measured for healthy, able-bodied workers.
“The big issue here is there is no definition or description of risk of harm in any of the 12 literatures I have searched,” Gavin Howe, an associate professor at Humber College and the university of Guelph Humber is quoted as saying in a published report. “I believe and interpret the language he (Dean) used to mean risk of harm to trade workers first and then other trades/workers on site, and then risk of harm to the general public.”
However, Howe said that while “risk of harm” definitions exist for those who need protection including the elderly, children, disabled, nurses/health care, nothing exists to define the issue for “highly skilled, healthy, well-adjusted workers who go in harm’s way.” This means the OCOT must build the definitions from scratch.
Trade classifications – determinations as to whether to certify trades as compulsory – have been one of the most contentious issues with the OCOT.
Changes here ensure that a “classification panel” of at least five members, three of whom must not be associated with employers or employees in the trades being considered, will decide on the certification process. “While the process and criteria has been left to the regulations, Bill 70 does mandate consideration of ‘risk of harm,’ the Sherrard Kuzz report says.
“The ability to classify a certain practice within trade’s SoP was recommended by the Dean report and constitutes a significant departure from the current practice,” the lawyers write.
“At present the classification of a trade is an ‘all or nothing’ endeavour.”
The rules for enforcing OCOT regulations have also changed, and again depend on a mandated focus into the “risk of harm”.
Sherrard Kuzz says in its report that Bill 70 directs the OCOT to develop a compliance and enforcement policy to:
- Describe what constitutes a risk of harm and how such risk will be addressed for the purposes of enforcement;
- Identify an annual identification of risks that will be the “enforcement focus for a compulsory trade for the year;” and
- Provide a description of “how the College will fulfill its duty to consult with other entities, including ministries of the Government of Ontario, that have legislative authority relating to compliance and enforcement issues.”
There are provisions in the legislation for the OCOT to set an enforcement policy (by June 7), and then “provide it to the Minister of Labour and make it public.”
Administrative penalties and OLRB appeals
Under the new rules, there are significant changes to how tickets will be issued for violating OCOT regulations.
The ticket now will be called a “Notice of Contravention” (NOC) and classified as an “administrative penalty”. In deciding whether to issue a NOC, the enforcement officer will consider the scopes of practice of other trades (possible overlap), the enforcement policy, and, notably, “the risk of harm” to the individual performing the work, other workers, and/or to the public.
The current proposal for the amount of an administrative penalty indicates they could be significant. For employers, the fine would be $500 per day times the number of employees for the first offence, while the second offence within three years it would be $1,000 a day times the number of employees; and if there are three or more offences, the cost would be $2,000 per day times the number of employees. There is a proposed $100,000 maximum penalty for a “single contravention.”
The Ontario Labour Relations Board (OLRB)
Under the new rules, the OLRB will be the route to appeal a NOC. In determining the appeal, the OLRB will consider scopes of practices of any other trade that may be relevant, the enforcement policy, the risk of harm, and “any other factor the OLRB considers relevant.”
Preparing for an enforcement visit
The lawyers say it is important to prepare for inspectors, by knowing which trades on a jobsite are compulsory, and which trades are subject to apprenticeship ratio requirements. Employers should maintain a jobsite binder with Certificates of Qualifications, registered training agreements, and statements of membership in the OCOT.
Any areas of non-compliance should be identified and remedied, and a site point person should always be in place to greet and accompany inspectors, explain documents and records, and be prepared to co-operate with them.