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Understanding the Canada Labour Code
by Jim Park
Of all the questions that come our way, the dominant theme, hands down, is workplace and labor regulations. How many holidays should I be paid for each year? Is my employer allowed to deduct the cost of lost or damaged freight from my pay? Am I entitled to overtime? How can they fire me for that? The questions run the gamut. It should come as no surprise that we get such an astonishing number of workplace-related questions. We learned recently from David Leroux, a technical advisor on labor standards with the Client Education & Training Branch of Human Resources Development Canada-Labour Program, says that no less than 78% of the complaint load his department deals with comes from the trucking sector. More than three quarters of all complaints come from truckers! Amazing. Leroux explains that the regulations governing the trucking industry are among the most complex in the country, and he isn't terribly shocked by the number of enquiries his department receives. Overworked and quite concerned, perhaps, but not shocked. "It's the nature of the industry," Leroux says. "The compensation packages are part of the problem. There are so many complexities in the way a driver is paid today, how they tally up the pay, how they keep records, and how they don't keep records. And then there are the differences between Transport Canada's hours-of-service rules and Labour Canada's hours-of-work rules. There's more than enough going on here to create some real confusion." The methods of work and pay have changed drastically over the years. "In the trucking world, there are very few who are paid strictly by the hour any more," Leroux goes on. "As a result, the calculations that are required for determining benefits and entitlements under the Code have had to be looked at very specifically on each case because everybody gets paid, and works, very differently. Even in something relatively straightforward like calculating the rate for a paid holiday, in trucking we have to go back and take an average of the wages earned over the past 20 days worked to determine an average day's pay." Leroux spent many, many years as a labor inspector working within the trucking sector, so he's familiar with most of your concerns. But for the purposes of this article, we're just going to touch on a few of the more common complaints, and even then, in a very general way. According to Leroux, there's seldom a straight 'yes' or 'no' answer to a question. Many benefits under the Code are based on a variety of 'qualifiers'. The rules become very gray as each case has its own set of facts. Therefore, it's best not to take everything you're about to read as a hard and fast rule. There are so many exceptions. We don't want to create more confusion by lumping everyone into the same category with our answers. We'll have a complete list of Labour Program office resources for you at the end of this piece. Future issues will cover more contentious problems such as overtime and how Labour Canada may define an owner-operator for the purpose of the Code. Jurisdiction Determining where you stand might be the simplest question we address here, but we can't answer with any certainty which statutes might apply to your operation. Since a majority of our readers will fall under the Canada Labour Code, that's where we'll start. Canada Labour Code Over the next few months, highwaySTAR will be examining various sections of Parts II and III of the Code to help sort out some of your questions and misconceptions about the laws that govern your workplace. This issue: general holidays General Holidays The Code does not prohibit work on a general holiday, but employees who are required to work on a general holiday shall be paid a premium. Employees must qualify for the holiday by earning 15 days' wages in the 30 days proceeding the general holiday. Also, employees do not qualify if the holiday falls in the first 30 days of their employment. When New Year's Day, Canada Day, Remembrance Day, Christmas Day, or Boxing Day falls on a Sunday or Saturday, which would typically be a non-working day for the employee, he or she is entitled to a holiday with pay on the working day immediately preceding or following the general holiday. If one of the other general holidays listed above falls on a non-working day, then a holiday with pay is to be added to the employee's annual vacation or granted at another mutually convenient time. Among the thornier issues in trucking: how much pay is an employee entitled to on a paid holiday, if no work is done on that day? There are several answers, depending on the type of operation involved. Salaried employees (paid weekly or monthly) should receive their normal pay with no reduction for the day off. If an employee is paid on an hourly basis - the equivalent of the wages the employee would have earned for a normal day's work should be paid, and in other cases, the equivalent of a normal day's pay should apply. In trucking, where drivers may be paid by the mile and a 'normal day's pay' can vary considerably, Leroux says the regulations require that you go back over the past 20 working days (not counting overtime) to get an average to determine the equivalent of a normal day's pay. There are rules that apply to part-time drivers as well. See the chart.
Continuous Operation Generally speaking, trucking is considered a continuous operation, but the statute applies only to those persons necessary to the operation of the running of trucks. In other words, this provision usually applies only to drivers, mechanics, dispatchers, etc., or those who support drivers while on the road. As we noted above, an average of the past 20 days of regular wages is used in determining 'a regular day's pay'. But apparently, it isn't uncommon for some employers to concoct their own methods of calculating and paying holiday pay. We've heard that some employers simply add a few cents to the so-called regular mileage pay and advise the employee that the vacation earnings or holiday pay are "built into the rate," as the phrase goes. Or, we've also heard of employers offering flat-rate holiday pay. Even if an employee were to agree to an arrangement like that, the Code does not permit it, and the employee remains entitled to holiday pay, paid on the terms described above. Employees in a continuous operation who refuse to work as scheduled, or who make themselves unavailable for work (booking off), are not entitled to be paid for that day. The term booking off shouldn't be confused with simply having chosen, in advance, days off that happen to fall on a holiday. Booking off means not showing up for a designated shift, or removing your name from the work roster for the day of the holiday. The employee must have actually turned down an available shift or not reported for work after having been called to work on that general holiday, for denial of the general holiday pay to be effective. And as far as any conflict with hours of service is concerned, Leroux says it's not the same thing. "Being out of hours would not be seen as making themselves unavailable for work," he says. "In that case, they have been prevented from working by another law; they are not refusing to work. It's not the same as booking off." In a continuous operation, the Code allows the employer some flexibility in giving employees their entitlement to general holidays, in order to accommodate the operation. As a result, the employer chooses which of the following entitlements an employee will be afforded: a) the employee may be given the general holiday off with pay; or b) the employee may be required to work on the general holiday and receive a regular day's pay plus time and one-half for the actual hours worked on the holiday; or c) the employee may be required to work on the holiday as a regular work day, while getting a day off with pay at another more mutually convenient time, usually by adding it to the employee's vacation entitlement. So, there you have General Holidays according to the Canada Labour Code, Part III. As you can see, there's seldom a yes or no, right or wrong answer to a question. HRDC's David Leroux says that when a client makes an inquiry, the Early Resolution Officer/Duty Officer will try to determine the circumstances from which the question arises, and depending on how the situation is described, will give a specific answer. When calling a Labour Canada district office, be prepared to explain the nature of your complaint or question, and be prepared to answer a few questions. Without a complete picture, you might not get an accurate answer. If a complaint investigation is necessary, an inspector under the Code will be assigned. Next month, we'll look at the process of filing a formal complaint, and we'll also cover unauthorized deductions of wages and wage recovery. We've tried to be as accurate as possible with this article, but misinterpretations can occur. For precise information, please refer to Part III of the Canada Labour Code (Labour Standards), the Canada Labour Standards Regulations, and relevant amendments.
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