OCOT — Dean Review disappoints IBEW with recommendations as government moves forward with implementation

Tony Dean’s review of the Ontario College of Trades (OCOT) will result in changes that address the concerns of non-union employers and the Labourers Union, especially in critical areas such as scopes of practice and the criteria and process to be applied for apprenticeship ratio reviews and compulsory certification applications.

The provincial government has announced it will implement Dean’s proposed changes. Already, at least one trade union has issued a news release expressing dismay that the recommendations will be implemented without further review or consultation, a sign that advocates for changes to the OCOT processes will be welcomed by contractors on the other side of the labour relations fence.

The International Brotherhood of Electrical Workers Construction Council of Ontario issued a news release shortly after the report was released on Nov. 20, saying it is extremely disappointed to learn that the government is moving forward on implementing the OCOT review for Training, Colleges and University Minister Reza Moridi.

“We expected the government would invite comments on Dean’s proposal so there could be broad industry consultation and acceptance. Instead, we are being told this is the way it’s going to be,” said John Grimshaw, executive secretary-treasurer for the IBEW CCO.

“We are very concerned that there are significant changes being proposed in the Dean Report that will affect us and other trades,” Grimshaw said. “Yet, the industry is being presented with the report without the opportunity to comment on significant changes that will affect us. That is a mistake.”

Notably, the proposed changes will remove the decision-making power for compulsory certification from review boards that could be “stacked” with representatives of self-interested organizations, and makes safety the key criteria for any decision to implement compulsory certification requirements.

Dean says the provincial government’s Minister of Training, Colleges and Universities should “appoint a roster of experts, who would serve on review panels for decisions about the classification or reclassification of trades and be advisory to the minister on matters of apprenticeship and training.”

Dean says these experts would be “individuals without an affiliation with a trade or a particular trade sector.”

“They could include individuals with expertise in areas such as public administration, facilitation and decision-making, health and safety, labour market development and the economy and consumer protection,” he wrote.

Notably, these review panels will be larger — with five or seven members instead of the original structure with three panelists — and they will have a clear mandate to focus on the public interest in their decisions.

“The minister should establish the following criteria for the purpose of review-panel decisions on the classification or reclassification of a trade as voluntary or compulsory,” Dean recommended.

He wrote:

1. The key factor for the classification or reclassification of a trade as voluntary or compulsory is risk of harm to one or more of (a) individuals working in the trade, (b) other workers on the job and/or (c) the public.
2. The secondary factors take into account the public interest assessed in light of the following criteria:
   • economic impact, including the impact on employers, apprentices, tradespeople, training institutions and government
   • the impact on access to the trade and labour mobility
   • a demonstrated public need (e.g., additional regulation is warranted, enhanced environmental protections, etc.)
   • implementation considerations (e.g., education and training, strategy for individuals currently practising the trade [grand-parenting], impact on training ratios, etc.)
3. A review panel is permitted to address other secondary factors that it considers to be in the public interest.
4. In its decision-making, the review panel should weigh the criteria with deference to the key factor compared with the secondary factors and may weigh each of the secondary factors, as it considers appropriate within this framework.

Regarding scopes of practice (SoP), Dean outlined these recommendations:

SoP Recommendation 1. In consultation with the ministry, the College should proceed with its Program Evaluation Process in order to recommend any amendments to the Minister of Training, Colleges and Universities regarding the consolidation or reduction of the number of trades named under the Ontario College of Trades and Apprenticeship Act.

SoP Recommendation 2. The College should be mindful of its duty to serve and protect the public interest in carrying out SoP reviews and for the various uses of SoPs. It will be important that the College consider how SoPs are used within its policy framework for compliance and enforcement and, specifically, how they contribute to defining what it means to “engage in the practice” of each compulsory trade.

SoP Recommendation 3. The College should update and standardize the SoPs for trades using a common framework and template. The review process should be consistent for all trades, with overlaps in work between trades being discussed as part of the SoP review process in order that they are acknowledged and recognized for the purpose of training and apprenticeship. The College would be responsible for scheduling and grouping trades for the SoP review. Once the SoPs are updated and standardized, the College should periodically review them to capture any changes or advancements in technology, processes and equipment for a trade.

SoP Recommendation 4. The College should determine which features of a trade’s SoP may be in Board regulations and which features may be in College guidelines or other operational policy documents.

In establishing updated and standardized SoPs for trades, the College should consider a broad set of inputs for the review of SoPs. This could include:

• the general description or statements in regulation
• advice of industry, subject matter experts and the public
• common overlaps with other trades
• exemptions and exclusions that may apply to the trade and are within the Board’s purview
• existing training documents used by the College, including the National Occupational Analysis for Red Seal trades and College apprenticeship training and curriculum standards
• other legislation and regulations that reference the trade
• any standards of practice, guidelines, policies and/or by-laws that may apply to members of the College practising the trade

SoP Recommendation 5. The College should leverage the Trade Boards to facilitate the process for reviewing and updating SoPs for trades. SoP reviews should include discussions with other trades with overlapping work, which should include discussions between Trade Boards and other stakeholders. Trades should come to consensus on proposed amendments to a trade’s SoP.

SoP Recommendation 6. The College may need to establish a non-binding conciliation process to help build consensus between trades, including discussions between Trade Boards, especially on areas of overlap.

For journeymen to apprenticeship ratio reviews, he recommended:

Journeyperson-to-Apprentice Ratio Reviews Recommendation 1. The roster of adjudicators for review panels and selection of review panels should continue as outlined under the Ontario College of Trades and Apprenticeship Act. Professional and administrative staff of the College should support the ratio-review panels.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 2. The College should make sufficient efforts to communicate information about ratio reviews to ensure broad stakeholder participation from across Ontario.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 3. The College’s Board should consider establishing new criteria under O. Reg. 458/11. Review panels would evaluate submissions against these criteria to decide the appropriate ratio for a trade prescribed with a ratio. The following criteria are recommended:

• quality of on-the-job training, the impact of journeyperson-to-apprentice ratio on the training and performance of the apprenticeship and certification in the trade
• the potential for risk of harm for an apprentice and others
• the demographic and labour market information for the trade, including the age and availability of journeypersons, the number of prospective and registered apprentices and the rate of apprenticeship completions and certification
• economic impact, including impact on consumers, employers, apprentices, tradespeople, training institutions and government
• the demand for skilled trades in different regional/geographic areas of the province and any trade sector realities
• the experience of ratios for a similar trade or trade sector in other jurisdictions
• other factors relevant to the public interest

The review panel may weigh the criteria, as it considers appropriate.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 4. There may be a need to provide the Board with the authority to consider a short delay for the next cycle, due to begin in 2016, to allow for public consultation on any proposed regulatory amendments and other implementation activities.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 5. The review panel for ratios should have the ability to call its own evidence. It should not be limited to evidence contained in participant written and oral submissions.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 6. The College should accelerate the collection of, monitoring of and research about ratios and make this information available as part of its public data.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 7. The Board should revisit the timeframe required for a review panel to render its decision following its appointment. The current 120-day timeframe could be extended to 180 days, with any further extension being at the discretion of the Board. Alternatively, the Chair of the review panel could determine the time required for this part of the process, based on the specific circumstances of the application. There should be clear communication of the timeframe.

Journeyperson-to-Apprentice Ratio Reviews Recommendation 8. The College should develop a policy and evaluation framework to clarify the broader public-policy goals, including the purpose and implementation considerations for journeyperson-to-apprentice ratios for trades prescribed with ratios. This framework should be informed by College stakeholders and the findings made publicly available.

For enforcement and Ontario Labour Relations Board issues, he wrote:

College enforcement

The College’s current approach to compliance and enforcement of the prohibitions under OCTAA could benefit from a framework to provide clarity on enforcement that aligns with the public interest to protect workers and the public from harms.

College Enforcement Recommendation 1. The College should develop a policy-based approach to compliance and enforcement that considers risk of harms and consumer protection. The College Registrar could operationalize this through the issuance of directives, guidelines or other interpretive documents made publicly available on the College’s website and through any other means the College deems appropriate.

College Enforcement Recommendation 2. The College should establish a compliance and enforcement committee of the Board to assist with the development of a policy-based framework for compliance and enforcement. The majority of the membership of this committee should be representatives from employer and employee groups with knowledge of the trades or trade sectors and who are not members of the College’s governing boards. The Board may also consider the need for representatives of other regulators and the public.

College enforcement and Ontario Labour Relations Board decisions

The College’s current approach to enforcement applies to the “full scope of practice” for a compulsory trade, and it regards this as equivalent to “engaging in the practice” of a compulsory trade. This approach is inconsistent with and, in some cases, is disrupting previous agreements between workplace parties and past decisions of the Ontario Labour Relations Board (OLRB) in resolving jurisdictional disputes. This is an issue because of the many factors in sectors and workplaces which have given rise to overlapping work between trades.

OLRB Decision Recommendation 1. Develop a mechanism that would allow individuals or their representatives or employers to appeal to the OLRB on the basis that the OLRB previously addressed the College enforcement action or it is the subject of an existing agreement.

In developing the mechanism for appeals, it is recommended that:

• The OLRB would first determine on a prima facie basis whether there are grounds for an appeal.
• Where the OLRB proceeds with an appeal, it would be directed to have regard to, among other things, theOntario College of Trades and Apprenticeship Act and the College would have standing before the OLRB. Where an appeal is upheld, the matter would be nullified.
• Where the OLRB finds that an existing decision or agreement is relevant in an appeal but not determinative, it may designate the matter as a jurisdictional dispute, and it would be processed accordingly. In this case, the College would have standing before the OLRB. If the OLRB finds on behalf of the appellant, the matter would be nullified.
• The action of the College would be stayed until the OLRB releases a decision.

In a news release, the government said it would move forward in impleneting the recommendations. “Ontario will bring forward proposed legislative changes in the spring legislative session and will work closely with the College of Trades to implement Mr. Dean’s recommendations,” the government said.

“Today, the OCOT along with the Minister of Training, Colleges and Universities, received Mr. Dean’s recommendations to help address some technical processes that we all agree could benefit from improvement,” OCOT board of governors chair Pat Blackwood said in a statement.

“The College is pleased that Mr. Dean begins his report by endorsing the College’s mandate, the important role of our Trade Boards, and the valuable work we do on a daily basis to protect the public interest, and modernize and promote the skilled trades in Ontario.

“We are happy to report that we have already begun to undertake foundational work that aligns with the direction of some of Mr. Dean’s recommendations.

“Given the complexity and importance of getting it right, the College, with input from our Trade Boards, Divisional Boards and Board of Governors, will work closely with the Ministry of Training, Colleges and Universities to develop an implementation strategy that is effective and practical.

“It is important to note that throughout this process the College has and will continue to fulfill its mandate to protect the public interest, modernize and promote the skilled trades.”