COCA Newsletter – May 2019
Welcome to COCA’s monthly Newsletter. Unless noted otherwise, all articles written by COCA President, Ian Cunningham.
COCA Finds Flaw in Federal Prompt Payment Act
Bill C97 is the federal government’s budget Bill. Like the Ontario government’s budget Bill, Bill 100, C97 is a large omnibus Bill that amends many statutes and introduces a number of new ones. Division 26 of Bill C97 introduces the Federal Prompt Payment for Construction Work Act. Careful review of Division 26 by COCA’s Prompt Payment Task Force Chair, Ted Dreyer, exposed a flaw. COCA stated the following in its submission to the Standing Committee on Finance, which is reviewing C97:
“COCA supports the pay when paid principle. The problem with the contractual pay when paid clauses that are now commonplace is that they tend to delay the resolution of the disputes that disrupt the flow of funds. Since a contractor with a pay when paid clause in its subcontract has no obligation to pay its subcontractors, the contractor is not particularly motivated to resolve its underlying dispute with the owner that is delaying payment. Since the subcontractor does not have privity of contract with the owner, it is powerless to bring the dispute between the contractor and owner that is delaying payment to a head. Contractual pay when paid clauses are one of the main reasons for the industry wide trend of slow payment.
Government Cuts Prevention Spending
An article in the May 10th issue of the Toronto Star reported on budget cuts to the Ministry of Labour’s Prevention Office. The article reported the following:
- The Ministry of Labour’s Prevention Office is funded from WSIB premiums paid by Ontario employers that are obliged by law to participate in the province’s workers compensation system; it is not funded from the general revenues of the province that are derived from the province’s taxpayers
- The Prevention Office’s budget was cut by $16M or 13.5% from $119M in 2018 to $103M
- Health and Safety Associations (HSAs) will see a total reduction of $12M
- Research funding will be cut from $8.5M in 2018 to $6.8M this year
- The government states that the cuts were made following a comprehensive review of all programs and will result in improved efficiencies and better value for money
It is our understanding that:
- The Infrastructure Health and Safety Association, which serves the construction, utilities and transportation sectors, has a budget of approximately $23+M
- The IHSA’s budget has been flatlined since 2009 and was subject to a 5% cut in 2015
- The IHSA’s budget was cut by $1.3M in December 2018
- The IHSA will be funded at 2018 level for the first half of 2019
- The IHSA and the Workplace Safety and Prevention Services (WSPS), the two largest HSAs, are believed to account for approximately $10M of the cuts
- The IHSA has reserves derived from accumulated surpluses in previous years
- The IHSA will be allowed to use those surpluses to maintain operations in the last half of the year so we don’t expect changes to service levels
- What will happen to funding for next year when the IHSA’s surpluses have been used up is not known; that could be when the real crunch from these announced cuts is felt
What’s the Status of the Budget Bill and the New Framework for the Trades
Bill 100, Protecting What Matters Most Act (Budget Measures) 2019 is our provincial government’s budget Bill. It is a very large omnibus Bill that enacts, amends and repeals various statutes.
Among the statutes that it enacts is the Modernizing the Skilled Trades and Apprenticeship Act, 2019 which sets out a framework for a Ontario’s new skilled trades and apprenticeship system to replace the system put in place by the former government in April 2012.
Bill 100 was introduced for first reading on April 11th, passed second reading on May 2nd and was referred to the Standing Committee on Finance and Economic Affairs for public hearings and clause-by-clause review. It’s expected to be reported back to the legislature on May 14th and because third reading has been time allocated, we expect a third reading vote on May 16th.
Publication of Substantial Performance – Cost vs Convenience and Certainty
There is a debate currently ongoing in the construction industry regarding the publication of substantial performance required by regulation under the Construction Act. Here’s what the regulation says,
“Certificate, declaration of substantial performance
9. A certificate of substantial performance (Form 9) or declaration of substantial performance under section 32 of the Act shall be published in a construction trade newspaper.”
C Suite Changes at WSIB
We have been advised of a number of changes in the senior management team at the WSIB.
Pamela Steer, Chief Financial Officer (CFO) has announced that she will be leaving the WSIB effective May 31st. Tom Bell, the Chief Risk Officer will assume the responsibilities of CFO on an interim basis in addition to his current role.
Kate Lamb, Chief Corporate Services Officer (CCSO) has advised that she will be leaving the WSIB effective June 21st. Susanna Zagar, Chief Strategy and Analytics Officer will assume the responsibilities of the CCSO also on an interim basis in addition to her current role.
In making these announcements, the WSIB expressed gratitude to Steer and Lamb for their tremendous work over the last seven to eight years and wished them the very best with their future endeavors. We concur; these executives have always been responsive and helpful in our dealings with COCA and we wish them the very best also.
It’s believed that the departures of Pamela Steer and Kate Lamb could provide the WSIB with an opportunity to streamline its senior management team.
Results of WSIB Value for Money Audit
Following its legislative requirement, the Workplace Safety and Insurance Board (WSIB) engaged KPMG to conduct a Value for Money Audit (VFMA) of its Occupational Disease and Survivor Benefit Program (“the ODSBP”).
The primary purpose of the audit was to provide observations as to whether current adjudication decision making and ongoing claims administration processes for ODSBP are being delivered in an efficient and effective manner, and an assessment of the effectiveness of the approach for long latency occupational disease, chronic exposures and effects, and acute exposures and effects.
The audit found that:
- “there is significant value in the WSIB delivering the program in support of its legislative obligations”; and
- “the program is administered in an efficient manner that meets the needs of both workers and employers.”
While the program is delivering value-for-money, the audit also made recommendations to further strengthen and improve the program. The WSIB concurs with KPMG’s findings and is developing a series of initiatives to address the audit’s recommendations.
CFBA Fetes Founding Member Van Bolderen
The Canadian Farm Builders Association (CFBA) honoured founding member, Gary van Bolderen, on the occasion of his retirement from the CFBA Board of Directors at a special luncheon held on Friday, May 10th in Guelph.
Recognizing his important contributions to the association, President Terry Rothwell noted van Bolderen’s unparalleled dedication exemplified in his almost forty years of continuous service. Past President Dan Reimer told the gathering, which included current and many former CFBA directors and members, that van Bolderen distinguished himself with his hard work on behalf of the association and by always going the extra mile. Vice President Michael Leach praised van Bolderen for his integrity, for setting a new high standard for others to follow and for serving as a role model for many in the industry.
In addition to his service to the CFBA, where he served as President multiple times, van Bolderen is the Immediate Past Chair of the Council of Ontario Construction Associations, a member of the Board of Directors of the Barrie Construction Association, the Ontario Vice Chair on the Board of Directors of the Canadian Construction Association and an expert panel member advising the federal government on the farm building code.
2019 Parliamentary Calendar
The Ontario Legislature will not be in session from Monday, May 20th to Thursday, May 23rd as MPPs will be spending time in their ridings connecting with constituents. Constituency weeks are the perfect time for a small delegation of members from your construction association to meet with your local MPP(s) to discuss the state of the industry.
You want to position your association as the first place your MPP(s) will turn first for advice when construction issues arise. In addition to local issues, you might raise the following provincial matters:
- Steps that can be taken to address the shortage of skilled labour
- The roll-out of public infrastructure projects; the government announced an investment of $10.5B for 2019-20 in the recent budget
- Support the introduction of the WSIB’s Rate Framework in January 1, 2020
- Support the introduction of the WSIB’s Health and Safety Excellence Program in January 2020 and the launch of the Ministry of Labour’s Accreditation Standard
- Make it illegal for municipalities to exclude contractors with whom they have a dispute from bidding their work
The Legislature will resume sitting on Monday, May 27th and is scheduled to rise on Thursday, May 6th for the summer break (which is another convenient time to schedule MPP meetings). The fall 2019 session will begin on Monday, September 9th.
Discipline in the Workplace – Common Issues and Best Practices
Discipline in the workplace can be an employer’s greatest challenge; more so, when complicated by a workplace harassment complaint or human rights consideration. Too often employers feel their hands are tied, preventing corrective action or discipline. In this seminar we explore practical and strategic approaches to address misconduct, poor performance and discipline:
1. When is discipline appropriate?
Can an employee be disciplined for off-duty misconduct?
Is there still value in a performance improvement plan?
2. What is the appropriate discipline?
Mitigating and aggravating factors.
How to communicate the outcome.
3. Union Representation
How does this impact the process?
4. Human Rights
When (and how) disability, family status or another protected ground influences an employer’s decision-making.
Can we still use a Last Chance Agreement? If so, when and how?
5. Harassment and Conflict
Can an employer’s duty to ensure a safe workplace justify discipline?
Can discipline be issued to an employee who makes a harassment complaint?
6. Practical tips to ensure the best outcome
Wednesday June 12, 2019
7:30 – 9:30 a.m.
(Breakfast at 7:30 a.m.; program at 8:00 a.m.)
Mississauga Convention Centre,
75 Derry Road West, Mississauga
Register by Monday, May 27, 2019 (spaces limited)
Details, including how to register, can on be found on the website.