0048-99-HS International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 786, Applicant v. Buttcon Limited, Unistrut Canada Limited, International Brotherhood of Electrical Workers, International Brotherhood of Electrical Workers, Local Union 1687 and Ministry of Labour, Responding Parties v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Gary Caroline, Frederica Wilson, Jim Lajeunesse, Fred Marr, and Donald Melvin for the applicant; Robert A. Booth for Buttcon Limited; Carl Peterson and John Seto for Unistrut Canada Limited; Andrea Bowker, Larry Lineham, and Bruce McNamara for the International Brotherhood of Electrical Workers and the International Brotherhood of Electrical Workers, Local 1687; Brian Fukuzawa, Bruce Arnott, Heidi Lazar-Meyn and Robert Askin for the Ministry of Labour; and, John Moszynski for the Labourers’ International Union of North America, Ontario Provincial District Council.
DECISION OF THE BOARD; June 23, 2000
This is an appeal of an order made by an Occupational Health and Safety Inspector in Field Visit No. 744341, dated March 12, 1999.
The portion of the order under appeal is as follows:
Order No. 1, Type Code F, Regulation 784, 1993, Section 1(3)
Every employer shall ensure that the worker holds a subsisting certificate of qualification as an Electrician Branch 1 – Construction or is an apprentice in the trade. No further work or installing of hangers and brackets for communications, alarm, power and surveillance shall be done by non-qualified workers.
The order arose in the context of the construction of a casino in Sault Ste. Marie. The applicant (the “Ironworkers”) were performing work installing hangers and brackets on the project. As a result of a complaint the Inspector issued the order referenced above. The consequence of the order was that the Ironworkers were removed from the job, and the work was assigned to electricians and electrical apprentices from the International Brotherhood of Electrical Workers local. The Ironworkers therefor appealed the order.
On the fourth day of hearing the parties were able to resolve all matters in dispute between them. The remainder of this decision is made pursuant to the Memorandum of Agreement reached on June 20 and 22, 2000.
The Board notes that the parties agreed that the policies of the Ministry of Labour include those set out in the Exhibits filed with the Board in this matter, and in particular are as follows:
Excerpt from July 18, 1994 Ministry of Labour Policy regarding the Trades Qualification and Apprenticeship Act (TQAA)
- PROCEDURES
3a. Inspections
TQAA compliance should be randomly audited during normal Health and Safety inspections. When you observe “compulsory trade” work being carried out at a premise/project, identify yourself to the person doing the work, and request the worker to produce proof of certification or proof of apprenticeship registration.
Proof consists of a certificate or wallet card issued by OTAB (formerly the Ministry of Skills Development) for the trade being performed.
When determining whether a contravention falls under OTAB or MOL, the inspector should determine whether the concern is a bona fide health and safety concern or whether this is in reality an economic or political dispute. A common example of the latter would be two trades “squabbling” because each wants to be awarded work on a contract (i.e. jurisdictional dispute).
Clarification is also necessary whether an individual contravention is of a TQAA nature or is alleged as a TQAA/OTAB issue.
Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades … ie, Sprinkler Vs. Plumber/Fitter. We must recognise that either trade could legitimately do this job. If there is a dispute in that regard it should be dealt with as a jurisdictional matter.
Excerpt from Manual regarding Regulations Under TQA, Chapter 2
(At page 8)
NOTE
Each trade consists of a number of tasks. When a task is contained in only one compulsory trade then only a person certified or registered as an apprentice in that trade may perform the task. When a task is contained in two or more compulsory trades then persons certified or registered as an apprentice in any of the compulsory trades that contain the task may perform that task. When a task is contained in a compulsory trade and a voluntary trade then any person may perform the task without having to be certified or registered as an apprentice in any trade.
The order under appeal is hereby rescinded.
Since this is a case of first impression, the Board recommends to the Ministry of Labour that this decision be circulated to all Occupational Health and Safety Inspectors who may be conducting their inspections in the construction industry.
“Gail Misra”
for the Board