Guide to seeking Director’s direction for the use of non-certified operators in the event of a strike or lock-out
Information for owners and operating authorities of drinking water and wastewater systems on policies and procedures related to strike and lock-outs involving operators.
1. Purpose of this guide
This guide provides information to owners and operating authorities of drinking water subsystems and wastewater facilities on policies and procedures related to the strike and lock-out provisions set out in Ontario Regulation 128/04: Certification of Drinking Water System Operators and Water Quality Analysts (Ontario Regulation 128/04) and Ontario Regulation 129/04: Licensing of Sewage Works Operators (Ontario Regulation 129/04). This includes guidance on the information required to seek Director’s direction and exemption for the temporary use of non-certified drinking water operators and unlicensed wastewater operators in the event of a strike or lock-out.
The strike and lock-out provisions of Ontario Regulation 128/04 and Ontario Regulation 129/04 are broadly similar. When this guide addresses aspects of these regulations that apply to both drinking water subsystems and wastewater facilities, it uses the general term "system".
Other aspects of this guide are specific to drinking water subsystems, or wastewater facilities. When discussing details that apply only to drinking water, the guide uses the term “subsystem”. When discussing details that apply only to wastewater, the guide uses the term "facility".
This guide should not be considered legal advice. In the event of a conflict between this guide and the requirements of applicable legislation, the legislation governs. Owners, operating authorities, and operators should refer to the Safe Drinking Water Act, 2002, Ontario Regulation 128/04, the Ontario Water Resources Act, and Ontario Regulation 129/04 for a complete understanding of their legal responsibilities and certification compliance requirements.
2. Context
In the event of a strike or lock-out involving operators of drinking water or wastewater systems, the owners and operating authorities involved must continue to operate their systems in a safe and efficient manner.
2.1 Owner and operating authority responsibilities
The Safe Drinking Water Act, 2002 (SDWA), sets out the responsibilities of every owner and operating authority of a municipal drinking water system or a regulated non-municipal drinking water system.
The Ontario Water Resources Act (OWRA) and Environmental Compliance Approvals issued for wastewater facilities set out the responsibilities of every owner and operating authority with respect to wastewater facilities.
These responsibilities include that the system be operated by properly trained, skilled and knowledgeable certified/licensed operators. The system must also be operated under the supervision of an Overall Responsible Operator (ORO) who holds a certificate or licence of the same type and class of the system and one or more qualified Operators-in-Charge (OIC).
2.2 Role of the Ministry of the Environment, Conservation and Parks
The Ministry of the Environment, Conservation and Parks (MECP/ministry) has an active role in safeguarding Ontario’s drinking water and waterways to protect public health and the natural environment.
In situations where the operation of drinking water subsystems and wastewater is at risk, the ministry will take action to help ensure that these systems continue to be operated safely and efficiently, without a significant risk to human health or the natural environment. This may include exercising the Director’s authority under the strike and lock-out provisions in Ontario Regulation 128/04 and Ontario Regulation 129/04, if this is requested by the owner or operating authority of a system.
2.3 Director’s authority in the event of a strike or lock-out involving operators
In the event of a strike or lock-out involving operators employed in a subsystem or facility, the ministry Director appointed for Ontario Regulation 128/04 and for Ontario Regulation 129/04 (the Director), may:
- exempt the owner or operating authority of the subsystem from complying with subsection 12 (1) of the SDWA
- direct that sections 22 (Owner or operating authority responsibility) and 23 (Overall responsible operator) of Ontario Regulation 128/04, or sections 14 (Operators must be licensed) and 15 (Overall responsible operator) of Ontario Regulation 129/04, as applicable, not apply to the system for the duration of the strike or lock-out
To make this exemption or provide this direction or both, the Director must be satisfied that the system will be operated without a significant risk to human health or the natural environment.
If the Director makes such an exemption and direction, the effect is to:
- enable the temporary operation of a system by one or more persons who do not hold the applicable operator certificate or licence in the event of a strike or lock-out
- exempt the owner or operating authority of a system from the ORO designation requirements
2.4 When a strike and lock-out plan is required
If an owner or operating authority intends to use non-certified/licensed personnel to operate a system in the event of a strike or lock-out, they are required to:
- prepare and submit a strike and lock-out plan (Plan) for the continued safe and efficient operation of the system
- submit the Plan to the Director at least 14 days prior to the legal strike or lock-out date
Before a Plan can be implemented, it must be reviewed and accepted by the Director.
2.5 When a strike and lock-out plan is not required
The owner or operating authority is not required to submit a Plan to the Director if they will continue to employ only appropriately certified or licensed operators to operate all systems impacted during the strike or lock-out. In these situations:
- the owner or operating authority must continue to meet all the operator certification requirements under Ontario Regulator 128/04 or Ontario Regulator 129/04, as applicable, for the systems impacted by the strike or lock-out (for example, must designate appropriately certified/licensed ORO and one or more OICs etc.)
- the ministry may request that the owner or operating authority provide information on their strike contingency plan to the local MECP district office
3. Policy
3.1 Preparing for a potential strike or lock-out
Strike or lock-out preparation and planning are essential for employers bound by collective agreements working in the drinking water and wastewater sector.
Strike and lock-out situations are foreseeable potential events contemplated under the framework of Ontario’s Labour Relations Act, 1995 and are not considered emergency situations in and of themselves for the purposes of the Emergency Situations provisions contained in Ontario Regulation 128/04 or Ontario Regulation 129/04.
This distinction is emphasized by section 35 of Ontario Regulation 128/04 and section 24 of Ontario Regulation 129/04, which explain that the regulations, including the emergency provisions, do not relieve any person from any obligation to comply with applicable labour laws or collective agreements, and that those sections do not apply in situations arising solely as the result of the exercise of a right under applicable labour laws or collective agreements (for example, in strike or lock-out situations).
Ensure operational and contingency plans are up to date
The Drinking Water Quality Management Standard (DWQMS) was developed in consultation between the Ministry of the Environment, Conservation and Parks and Ontario’s water sector.
The SDWA requires operating authorities of drinking water systems to have operational plans that document the operating authority’s quality management system for each drinking water system they operate to be accredited. Operational plans must contain the information necessary to conform with the DWQMS.
Element 11 — Personnel Coverage of the DWQMS states that:
the operational plan shall document a procedure to ensure that sufficient personnel meeting identified competencies are available for duties that directly affect drinking water quality
This means that the operating authority should consider how personnel coverage would be managed in a potential staff shortage situation, such as a labour disruption (for example, a strike or lock-out). The DWQMS advises that plans be in place before a potential strike or lock-out. We recommend that owners and operating authorities of systems maintain up-to-date strike and lock-out plans for their systems, even when a strike or lock-out is not anticipated.
Early contact with ministry staff
We recommend that the owner or operating authority of a system inform their local MECP district office of any upcoming potential strike or lock-out situations that involve operators employed in the system.
Ministry staff are available to discuss strike and lock-out plans as well as other contingency plans in advance of a potential strike or lock-out. Communicating with the ministry well in advance of a potential strike or lock-out will help ensure that:
- any issues with a Plan are resolved
- potential risks are mitigated
- non-certified personnel can be adequately trained and prepared prior to a potential strike or lock-out
This proactive communication will help ensure that systems have Plans that can be implemented at the onset of a strike or lock-out, so that systems can continue to be operated without a significant risk to human health or the natural environment.
Identify timeline of strike or lock-out
Determining when the parties are able to engage in a legal strike or lock-out is crucial to the success of the contingency planning process.
Get information about the collective bargaining process
3.2 Timing of Plan submission
The owner or operating authority of a system must submit their Plan at least 14 days prior to the earliest possible legal strike or lock-out date.
The Director may waive the 14-day deadline if the Director is of the opinion that a Plan cannot reasonably be prepared and submitted on time, and the review of the Plan and issuance of the written notice to either accept or reject the Plan can be completed before the earliest legal strike or lock-out date. Requests to waive the 14-day deadline are to be made prior to the deadline.
If a request to waive the deadline has not been received by the Director, failure to submit a Plan by the 14-day deadline will be considered non-compliance. In these situations, the Director will still review a Plan submitted after the 14-day deadline has passed. However, there is no assurance that the Director will be able to review the Plan and issue the written notice accepting or rejecting the Plan before the legal strike or lock-out date. Please note, the Director’s acceptance of a Plan does not excuse an owner or operating authority from non-compliance related to the 14-day deadline.
3.3 Completing a strike and lock-out plan
Owners and operating authorities complete and submit Plans using the Strike and Lock-out Plan Submission form
The following tables describe what the Plan must include, as well as what information the ministry typically expects to be submitted for consideration for each requirement.
Type of information required | What the owner or operating authority is expected to submit |
---|---|
A description of the system, including its operating systems and processes |
|
A description of operator staffing requirements for the normal operation of the system |
|
Details of the training to be provided by the owner or operating authority to all persons described in the list of persons described in Table B |
|
Information about:
|
|
Confirmation that all persons described in Table B will:
|
|
Type of information | What the owner or operating authority is expected to submit |
---|---|
Name |
|
Current position |
|
Qualifications |
|
Proposed responsibilities for each person during the strike or lock-out | A description of major operating duties/functions to be performed by each person and whether they will:
|
Other information to be included in the Plan
Other information that the ministry would typically expect to see in a Plan includes:
- During the normal operation of a system there must be an operator designated as ORO at all times. The owner or operating authority of a drinking water subsystem, or the owner of a wastewater facility, must designate an operator who holds a certificate or licence that is applicable to that type of system and is of the same class as or higher than the class of the system.
- directing other operators on the operation of the system
- the ability to respond immediately and effectively to an emergency
If the Director issues a written notice accepting the Plan, the notice will typically direct that ORO requirements set out in section 23 of Ontario Regulation 128/04 or section 15 of Ontario Regulation 129/04 not apply for the duration of the strike or lock-out.
While the ORO requirements relating to designation and certification/licensing may not apply to the system for the duration of the strike or lock-out, the Plan should include information on the person or persons who will fulfil the responsibilities normally performed by the ORO.
- Licensed engineering practitioners who do not hold a drinking water operator’s certificate or professional engineers who do not hold a wastewater operator’s licence may perform some operational work as allowed under subsection 25 (3) of Ontario Regulation 128/04, and subsection 14 (2) of Ontario Regulation 129/04. The plan must also include whether the owner or operating authority of a drinking water subsystem or wastewater facility intends to use a licensed engineering practitioner or professional engineer who does not hold the applicable type and class of operator licence to fulfil the responsibilities normally performed by the ORO during a strike or lock-out.
- The Plan should identify how shifts will be organized among certified/licensed and non-certified/unlicensed personnel and to ensure that one or more appropriately certified/licensed operators or licensed engineering practitioner/professional engineers are designated as OIC at all times for each system impacted by the strike or lock-out.
- The Plan should indicate how long the owner or operating authority expects the proposed staffing level can be maintained.
- If the Plan includes designation of a licensed engineering practitioner or professional engineer who does not have an operator’s certificate/licence as OIC, the number of days in the last 24-month period when this provision was used should be noted. Please refer to subsection 25 (3) and (4) of Ontario Regulation 128/04 and 17 (3) and (4) of Ontario Regulation 129/04. Note that if a professional engineer or licensed engineering practitioner listed in the Plan will not be designated as the OIC, they are considered non-certified/unlicensed personnel and should be identified as such in the Plan.
- The Plan should identify any potential risks or challenges that may affect the safe and efficient operation of the system. A mitigation strategy should be provided for each risk or challenge identified.
- The Plan should include details of the security measures that will be put into place by the municipality or operating authority related to the strike action (for example, pickets), and overall system security during the strike or lockout.
- Confirmation that critical suppliers and contractors would be able to continue to provide goods and services required for the operation of the system during the strike or lock-out (for example, chemical supplies, electrical and maintenance work) should also be included in the Plan.
3.4 Director’s review of the Plan
The purpose of the Director’s review of the Plan is to determine whether the system can be operated safely and efficiently during a strike or lock-out.
As part of the review process, if any of the information listed under section 3.3 is not included in the Plan, or the level of detail provided is insufficient, the Director may request that the owner or operating authority submit additional information or amend the Plan.
Before the Director can accept the Plan and provide the direction and exemption regarding operator certification requirements, they must be satisfied that the system will be operated without significant risk to human health or the natural environment.
Factors that may be considered during the review of a Plan include, but are not limited to:
- whether the number of certified and non-certified personnel proposed to temporarily operate the system during the strike or lock-out is sufficient to perform the required operating duties/functions
- whether the number of designated OICs during the strike and lock-out is sufficient to provide adequate oversight of system operations
- the ability of non-certified personnel to perform the proposed operating duties/functions based on the qualifications provided
- whether the Plan is sustainable, and for what length of time
- the adequacy of the proposed security provisions related to the potential strike action and overall system security during the strike or lock-out
- the ability of the owner or operating authority to obtain the required supplies and services to ensure the continued operation of the system
3.5 Acceptance or rejection of a Plan
After the review of the Plan, the Director shall issue a written notice to the owner or operating authority either accepting or rejecting the Plan.
Acceptance of a Plan
If the Director is satisfied that the system will be operated without a significant risk to human health or the natural environment, the Director will issue a written notice accepting the Plan.
The written notice will typically direct that for the duration of the potential strike or lock-out, sections 22 and 23 of Ontario Regulation 128/04 and/or sections 14 and 15 of Ontario Regulation 129/04 do not apply to the system, and, for drinking water subsystems, would typically exempt the owner or operating authority from needing to comply with subsection 12 (1) of the SDWA.
The Director’s issuance of a notice of acceptance of a Plan does not relieve the system owner or operating authority from the obligation to comply with:
- all other aspects of the SDWA, Ontario Regulation 128/04, OWRA and Ontario Regulation 129/04
- other applicable legislation or laws, including labour laws
- all conditions or requirements in any applicable Environmental Compliance Approvals, Drinking Water System Licences, Drinking Water Works Permits
- ministry orders or other ministry instruments issued to them
Acceptance of a Plan subject to conditions
The Director’s written notice accepting the Plan may be subject to specific conditions imposed by the Director. This notice may also stipulate other steps or information required from the owner or operating authority before the Director issues a final notice accepting the Plan.
For example, a notice of acceptance may be made subject to a condition requiring that non-certified personnel complete specific training within a specified timeframe. Once that training has been completed, the final notice accepting the Plan will be issued.
Rejection of a Plan
If after reviewing the Plan, the Director is not satisfied that the drinking water subsystem or wastewater facility will be operated without significant risk to human health or the natural environment, the Director shall issue a written notice rejecting the Plan.
If a Plan is rejected by the Director, the owner or operating authority cannot use non-certified or unlicensed personnel, as sections 22 and 23 of Ontario Regulations 128/04 and sections 14 and 15 of Ontario Regulations 129/04 still apply to the subsystem or facility respectively.
Additionally, the owner or operating authority of the subsystem is not exempt from complying with subsection 12 (1) of the SDWA. If a Plan is rejected, use of non-certified or unlicensed personnel to operate a system would be considered an instance of non-compliance.
In this situation it is incumbent on the owner or operating authority to make alternative arrangements to ensure that their system is operated in a safe and efficient manner by appropriately certified/licensed operators or otherwise qualified personnel (for example, professional engineer).
3.6 Owner and operating authority responsibilities during a strike or lock-out
For the duration of the strike or lock-out, the owner or operating authority is expected to provide ongoing and regular updates to the local MECP district office and report on any potential issues that could affect the ongoing operation of the system.
Plan amendments
During a strike or lock-out where a Plan has been accepted, the Director may require that the owner or operating authority amend the Plan or revoke the notice accepting the Plan if the Director is of the opinion that a significant risk to human health or the natural environment exists or is imminent in respect of the operation of the system.
For example, if multiple personnel listed in a Plan to be employed temporarily to operate a system during a strike are no longer available to operate the system, the resulting critical staffing shortage affects the continuity of operations of the system. As a result the Director will require the operating authority to amend their Plan to address the staffing shortage.
The Director may also impose conditions on a Plan that require the owner or operating authority to amend the Plan if certain circumstances arise or if specified changes to the personnel or the operation of the system occur during the strike or lock-out.
If the owner or operating authority is required to amend their Plan, the amended Plan will be reviewed by the Director, who will issue a written notice either accepting or rejecting the amended Plan.
4. How to submit a strike and lock-out plan
Submit the completed Strike and Lock-out Plan Submission form and any supporting materials by email to both of the following:
- the Director for the purposes of Ontario Regulation 128/04 and Ontario Regulation 129/04 at valerie.capalbo@ontario.ca
- your local MECP district office
Footnotes
- footnote[1] Back to paragraph Multiple systems can be included in one form submission; however, the required Plan information must be provided for each system. As set out in section 19 of the SDWA, persons who oversee municipal drinking water systems have responsibilities commonly referred to as a standard of care. These responsibilities apply to the owner of a municipal drinking water system; the officers and directors of a corporation other than a municipality that owns a municipal drinking water system; and any person who exercises decision-making authority or who oversees the accredited operating authority of a municipal drinking water system owned by a municipality. These responsibilities can extend to municipal councillors. For more information on the standard of care refer to the Taking Care of Your Drinking Water: A Guide for Members of Municipal Councils.