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Bill 138: Fact vs Fiction

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Fiction

Fact

Who drafted the Bill 138?
Was it HRPA?

The Legislature had agreed that it would be in the public interest for the Human Resources profession to be governed by a new public act, the Legislature took over. Bill 138 was drafted by the Office of Legislative Counsel not HRPA. As it turns out, the Legislature has a vision for the HR profession in Ontario. The Legislature wants a strong Human Resources profession that is governed to the same standard as similar professions.

For that reason, the Office of Legislative Counsel used the Certified Management Accountants Act, 2009, as the basis for Bill 138. In many ways, this repeats the situation when our current Act was introduced. The Human Resources Professionals Association of Ontario Act, 1990, was itself based on the Certified Generals Accountants of Ontario Act, 1983.

The Legislature gave us the act that it thought desirable for the Human Resources profession to have. The Legislature was not guided so much by what the Human Resources professionals want but what they thought was needed to protect the public interest.

It was also the case that the Legislature has a clear idea as to what it means to be a full-fledged professional regulator. It was also clear that the Legislature was not interested in a ‘pick and chose’ approach to professional regulation.

In drafting Bill 138, the Legislature demonstrated that it had full confidence that the HR profession and in its regulatory body could become a first-tier profession in Ontario.

Was there consultation in drafting the Act?

HRPA’s intentions to get a public act were very transperant, with articles in the main trade publication and with open invitations to all chapters for participation in lobbying activities. HRPA was very transparent regarding its intentions to pursue a public act.

As early as 2008 the Association made a presentation entitled ‘The Regulatory Agenda’ Volunteer Leadership Conference in October 2008 in which introduced the idea. 
An article published in the November 3, 2008 issue of Canadian HR Reporter entitled ‘Regulatory Agenda at HRPA’ the objective of getting a public act was introduced. 

In November 2009, the Office of the Registrar conducted a series of three webinars on the regulation of the Human Resources profession in Ontario. The third webinar in the series, which is still posted on the HRPA web site, specifically outlined the plan for pursuing a public act.

In the fall of 2009, lobbying for a public act began in earnest with the creation of the HR LNX grassroots advocacy program a chapter and member engagement initiative that focused on lobbying for a public act. An important event was the HRPA Lobby Day last May—a number of chapter presidents, chapter government relations directors and members participated in this event.

Then, in the January 25, 2010, issue of Canadian HR Reporter, there was another article entitled ‘HRPA pushes for public act,’ written by Sarah Dobson, giving an update on the public act initiative.

The Registrar of HRPA also conducted a session at the 2010 Annual Conference entitled ‘The Business Case for Regulation.”  This presentation also outlined the plan for pursuing a public act. Throughout all of these presentations and webinars, not one objection was raised with respect to pursuing a public act for HR professionals.  

But does HR need to be regulated anyway?

Bill 138 does not introduce regulation to the Human Resources profession in Ontario; this was accomplished 20 years ago by the Human Resources Professionals Association of Ontario Act, 1990. Most of the powers included in Bill 138 already exist in the current legislation. HRPA already appears as a ‘non-governmental body that exercises authority delegated by law’ in Table 1 of the Ontario Labour Mobility Act, 2009.  Bill 138 does not introduce regulation to HR professionals; it brings it up to date.

If we are already regulated, why do we need Bill 138?

The important difference between the Human Resources Professionals Association of Ontario Act, 1990 and Bill 138 is that the former is a private act whereas Bill 138 is a public act.  The differences between private acts and public acts are both subtle and profound.

The essential difference is that a private act is passed by the Legislature as a result of a request by a private concern; public acts are Introduced by a member of the Legislature.  (A ‘private members bill’ refers to a public act but introduced by a member of the Legislature who is not a member of the caucus.)   With a private act, the Legislature acquiesces somewhat passively; with a public act the Legislature is taking an active position. A public act represents the will of the Legislature.

Although ‘an act is an act’ and private acts are as much ‘law’ as public acts, private acts just don’t have the same status of public acts. Some consider professional regulation by private act a weaker kind of legislation.  Public acts are ‘the real thing.’ Public acts are taken much more seriously.
Being governed by a public act means that the Human Resources profession would join the ranks of the ‘really regulated’ professions or the ‘Tier 1 regulated professions.’

Why is it that our Act had to be like the accountants acts?

Our current Act, the Human Resources Professionals Association of Ontario Act, 1990, was itself based on the now obsolete Certified General Accountants of Ontario Act, 1983.  So this is not the first time that legislation for HR professionals has borrowed from legislation for the accounting profession.

The reason why the Office of Legislative Counsel gave us an act that was virtually identical to the Certified Management Accountants Act, 2009, and very similar to the Chartered Accountants Act, 2009, and the Certified General Accountants Act, 2009, was not convenience or expediency, it was because that is how the Legislature thinks of the HR profession. 

What about those powers of investigation and such, aren’t they excessive?

Professional regulation legislation comes as a ‘package deal;’ it is not a buffet where one can pick and chose what we want in terms of powers and obligations. Bill 138 is virtually identical to the Certified Management Accountants Act. 2009.  The powers granted to HRPA are nothing ‘special,’ they come with the territory. If we want to become a full fledged profession, we are going to come to grips with such powers.  In the end, it is a matter of choice; either we believe that we are capable of managing our own affairs responsibly or we don’t. In tabling Bill 138, the Legislature has shown confidence in the ability of HR professionals to manage their own affairs and to use the powers that are granted to the Association responsibly.

Also, to balance these added powers, the Legislature has introduced more oversight and accountabilities.  For instance, there will be three Lieutenant Governor-in-Council appointees to the HRPA Board, our proceedings will be subject to the Statutory Powers Procedures Act, 1990, and our registration practices will be subject to oversight by the Office of the Fairness Commissioner.

What about the cost of Bill 138?

The first thing to remember is that we are already a regulated profession. At HRPA, the machinery of regulation is already in place.  Bill 138 changes the details but not the substance of regulation.

It should also be noted that most of the work of regulation is done by volunteers. That is the meaning of ‘self-regulation.’  In a self-regulation model, decisions about members are made by members of the profession. Bill 138 does add a few more statutory committees, which will lead to more opportunities for volunteering with the Association.

With Bill 138, there would be no portability of the CHRP; the designation would no longer be recognized in other provinces

This is false—what makes the CHRP designation portable from one province to the next is the existence of mutual recognition agreements between provincial designation granting bodies.  Bill 138 changes nothing to those mutual recognition agreements.

Under Bill 138, HRPA continues to be subject to the Ontario Labour Mobility Act, 2009, as it is now under our current act.  The Ontario Labour Mobility Act, 2009, enforces the Agreement on Internal Trade (AIT) in Ontario.  Bill 138 does not change that.

Under the Ontario Labour Mobility Act, 2009, HRPA is required to make public its mutual recognition policy.
And so we did, in the Office of the Registrar section of the HRPA web site.  HRPA’s policy on mutual recognition is clear and to the point:

“HRPA will recognize any individual who has been granted the CHRP designation in any other province as qualified for certification by HRPA without additional material training, experience, examinations or assessments.”

Bill 138 changes absolutely nothing to the transportability of the CHRP, either from Ontario to another province, or from another province to Ontario.  Bill 138 actually provides for some exceptions that are not provided for in our current Act.
Section 7(2) of the Human Resources Professionals Association of Ontario Act, 1990, states: “Any person in Ontario who, not being a registered member of the Association, takes or uses the designation of "Certified Human Resources Professional" or its abbreviation "C.H.R.P." alone or in combination with any other words, name, title or description or implies, suggests or holds out that the person is a certified human resources professional is guilty of an offence.”  Our current Act does not provide for any exceptions.

Bill 138, on the other hand, does provide for some exceptions.  Bill 138 allows individuals who have been granted the CHRP designation in another province to use the title or initials (1) when giving a speech or presentation, (2) when applying for employment, or (3) in a proposal submitted in response to a request for proposals.

Why would HRPA need the authority to conduct professional inspections?

Professional inspections are sometimes confused with investigations; they are quite different. Professional inspections fall under the practice of quality assurance not complaints in regards to misconduct. Professional inspection is a form of peer review. L’Ordre in Quebec has had a program of professional inspections for years.

With Bill 138, is it the case that HRPA would have the right to demand that you attend a medical examination to determine your mental capacity to practice

This concern reflects a misunderstanding of the whole concept of ‘incapacity.’ Incapacity processes and procedure are an alternative to discipline. The ordinary disciplinary processes and procedures are built around the idea of punishment; incapacity processes and procedures are based on the idea of rehabilitation. Incapacity is akin to accommodation. If an employee suffers from a medical or psychological condition; it would not be appropriate or legal to treat their medically or psychologically related performance issues with progressive discipline.

Incapacity processes and procedures provide an alternative to discipline for members whose performance is impacted by medical or psychological issues based on a rehabilitative approach. The powers to request a medical or psychological examination are similar to those that employers have in requiring an opinion from a physician or psychologist before developing an accommodation plan. Were it not for the incapacity processes and procedures, the professional regulatory body would have no choice but to treat the misconduct as a discipline issue. This would not be in the best interest of the public or the practitioner.

Why would there provisions for bankruptcy?

It is important to remember that the purpose of professional regulation is not to protect the professional but to protect the public. When professionals in independent practice go bankrupt they can leave clients high and dry, that is why these acts include such provisions.

An increasing amount of HR professionals are now in independent practice, and it is projected that this trend will continue. Acts have a long lifespan; it is not unusual for an act to remain in effect for 30, 40, or even 50 years or more.  HRPA sees a future where HR professionals will offer a variety of HR services to small business as independent practitioners.

It is a mistake to assume that only accountants deal with financial matters. Some HR professionals direct or control significant funds on behalf of their clients (e.g., pensions, payroll, and tax deductions). In many ways, some HR professionals are more similar to accountants than many would think.

The bottom line is that a bankruptcy for an independent practitioner, operating either as a sole proprietor or as firm, could seriously impact the business of their clients.  These bankruptcy provisions are for the benefit of our clients.

Is it the case that Bill 138 would give HRPA the power to regulate all HR employee and employer issues pertaining to the practice area?

The answer is no.  HRPA’s regulatory powers extend only to its members. Nothing in Bill 138 limits the practice of individuals who are not members of the Association.  Individuals have the fundamental choice of joining the ranks of regulated HR professionals or not. Employers retain the choice of employing registered Human Resources professionals or not. Clients retain the choice of hiring registered Human Resources professionals or not.  HR professionals who do not wish to ‘be regulated’ by HRPA can chose not to be members of the Association.

Second, HRPA was granted the authority to regulate the practice of its members over 20 years ago by virtue of the Human Resources Professionals Association of Ontario Act, 1990.  Subsection 4(1)(c) of our current Act states that the Board has the authority to enact by-laws “regulating and governing the conduct of members of the association in the practice of their profession, by prescribing a code of ethics, rules of professional conduct and standards of practice.”.

According to Bill 138, HRPA could take over responsibility for any HR professionals managing trusts, estates and wills (including any personal/family wills/estates, that you may be required to handle), is that the case?

This concern is about ‘custodianship.’ The whole idea behind custodianship is that employers and clients should not be left ‘high and dry’ if suddenly a registered HR professional is unable to perform their duties. Simply, rather than be left ‘high and dry,’ the professional association can appoint a custodian that can assure a proper transition.

This is not an authority that would be exercised according to the process and procedures that would need to be followed under Bill 138.

Is it the case that, according to Bill 138, HRPA could define what members may or may not do in their practice of HR and may therefore limit the employability of HR professionals in this province

This is covered under the current act, Subsection 4(1)(c) of the Human Resources Professional Association of Ontario Act, 1990, states: “The board may pass by-laws as necessary to conduct the business and carry out the objects of the Association including, regulating and governing the conduct of members of the association in the practice of their profession, by prescribing a code of ethics, rules of professional conduct and standards of practice.”

Again, Human Resources professionals in Ontario retain the fundamental choice of not being members of the Association.  If an HR professional does not want to have any limitations to their practice of HR, if they do not want to be subject to a code of ethics, if they do not what to be subject to rules of professional conduct, they can chose not to be members of the Association.

Part and parcel of being a professional is to accept certain limitations on one’s practice.

The point about employability is an interesting one. The restrictions and limitations imposed by professional regulators are all about protecting the public by ensuring that practitioners are competent and act in an ethical manner. 

Yes, professionals are restricted in their ability to engage in areas that are outside their areas of competence or practices that would be unethical.

Bill 138, if passed, will become a money printing machine for HRPA executives and licence to control all human resources related business

This is false. Subsection 2 of the Act states: “This Act does not affect or interfere with the right of any person who is not a member of the Association to practice in the field of Human Resources.”  The Board of HRPA could not pass any by-law that contravenes the Act.

Again, individuals have the fundamental choice of joining the ranks of regulated HR professionals or not. Employers retain the choice of employing registered Human Resources professionals or not. Clients retain the choice of hiring registered Human Resources professionals or not.

Bill 138 supersedes previous Bill 70 and makes CHRP designation not valid under the original standards

This is false.  Bill 138 contains a number of ‘continuity’ clauses; nothing will be changed in the status of members as a result of the passage of Bill 138.

The standards for the CHRP designation are established by the HRPA Board of Directors—this is the case under our current act and would be continued under Bill 138.  Nothing is changed in this respect.

The ‘original standards’ have changed many times since the Human Resources Professionals Association of Ontario Act, 1990, was enacted.  In 1994, an exam was added, it was called the CPE. In 2003-2004, HRPA adopted the national exams. In 2009, HRPA re-introduced an experience requirement. Through all these changes, HRPA never applied one of these requirements retroactively—all designation holders at the time were ‘grandfathered.’

Does Bill 138 grant greater powers to HRPA that could require all members to complete a mandatory level of ongoing education through the provincial body.

The concern here is that HRPA could introduce requirements for general membership in addition to requirements for certification.  HRPA can do this under its current Act.

Under the current Act, HRPA regulates both designated and non-designated members.  All members appear in HRPA’s public register and all members are subject to HRPA’s Rules of Professional Conduct and HRPA’s Code of Ethics.  Bill 138 does not change this.

Subsection 4(1)(a) of our current Act states that the Board has the authority to enact by-laws “prescribing the curriculum and the courses of study to be pursued by the students and candidates in order to satisfy the academic requirements of any particular registration.” Any particular registration means designation-holders and non designation-holders alike.

Bill 138 will be a cost burden to employers?

This is false. In regards to cost burden to members and their employers, the thing to keep in mind is that membership in HRPA is voluntary and the CHRP designation is voluntary.  Nothing forces HR professionals to be members of the Association and nothing forces HR professionals to obtain the CHRP designation. It is a fact that, on the whole, designated accounts command better remuneration than bookkeepers.  Is that because employers and clients are forced to employ designated accountants?  No, it is because the marketplace puts more value on designated accountants than bookkeepers.

In the 20 years it has been in existence, the CHRP has been very successful in demonstrating its value. If anything, Bill 138 will increase the value of the CHRP designation.

Bill 138 restricts ability to use other professional designations unless approved by HRPA

This is false. HRPA has the authority to grant only those designations that we own and we have that right today. Anyone can establish an HR designation and grant it as long as it does not conflict with any that fall under HRPA intellectual property rights. As an example, the US association SHRM (Society for Human Resource Management) freely grants HR designations to its members in Ontario, who may, or may not be members of HRPA.

Bill 138 gives HRPA the power to eliminate all currently existing chapters and chapter Board through bylaws and organize its members into junior local groups

HRPA can do this under its current Act.
Subsection 3(4) of our current Act states “The association may by by-law divide the membership of Association into regions for the purpose of holding local meetings, organizing local activities and electing one or more directors.” Bill 138 changes nothing to the relation between HRPA and its chapters.

HRPA can create an HRPA Foundation with lucrative jobs for current leadership and shield HRPA huge revenue win fall resulting from this Bill.

This is false. HRPA can create a foundation under its present act. Subsection 4(1) (g) of our current Act states that the Board may enact by-laws  “authorizing the making of grants for any purpose that may tend to advance knowledge of human resources management or improve standards of practice.

The Foundation is a separate legal entity to HRPA, it is run by volunteers and there is no payment to any board or HRPA staff member.

Bill 138 includes the ability to restrict the professional activity of members, is that the case?

Under its current act, HRPA already has the authority to restrict the professional activity of its members. Subsection 4(1)(c) of our current Act states that the Board has the authority to enact by-laws “regulating and governing the conduct of members of the association in the practice of their profession, by prescribing a code of ethics, rules of professional conduct and standards of practice.”

Mandatory Professional Liability Insurance: Under Bill 138 the Board of the HRPA may establish bylaws requiring a minimum level of professional liability insurance for members and employers

This is already the case under the current Act.
It applies only to consultants not employed in organizations which already have corporate insurance and it designed to protect the public in case work contracted is incomplete or unprofessional. It is standard in all professional associations

Payment to cover the cost of investigations of a member and/or employer will be borne by the party being investigated (included bogus and false accusations) as established by bylaws (section 44)”

Section 44 is about ‘practice inspections’ not ‘investigations.’  Practice inspections are part of quality assurance programs not the complaints processes. Clearly the statement shows a confusion between ‘practice inspections’ and ‘investigations’ which are two different things. Many professions have peer review and other quality assurance mechanisms. Indeed, the Quebec HR association, also governed by a public act, also has these ‘professional inspections.’

Typically, the costs of a disciplinary proceeding are borne by the Association. Section 37 makes provisions for the discipline committee to award the costs of a proceeding against the member; but this is not the normal course and would not be done when allegations are deemed false or unsubstantiated. Discipline committees can award the costs of a proceeding against the member when the member has caused the Association to go through an unnecessary hearing process.

 “Fines of $25,000 per complaint”

Yes, that is the standard amount prescribes in similar regulatory acts.