Have Your Say
by Duff McCutcheon
Readers of highwayStar will recall a series that appeared in this space last
spring that detailed and explained elements of the Canada Labour Code and how
it relates to drivers. The well-received series explored such driver concerns
as holidays and vacation pay, wrongful dismissal, and wage deductions in the
context of the Code, among other things.
As it turns out, much of the Canada Labour Code - and especially the section
dealing with labour standards (Part III) - is hopelessly out of step with the
realities of driving truck. A city driver is entitled to overtime after 45 hours
a week, but a highway driver has to clock 60 hours before receiving overtime?
The Code deals with hourly pay when most drivers are paid by the mile? If paid
by the mile, how do you calculate the rate for a paid holiday? Etcetera, etcetera.
In some cases provincial regulations differ from the federal regulations, and
drivers are often confused about which jurisdiction they fall under, which adds
immensely to the potential for calamity.
As was mentioned in an article from the February 2004 issue - "Understanding
the Canada Labour Code" - no less than 78% of complaints to the Human Resources
and Skills Development Canada - Labour Program come from the trucking sector.
Small surprise given that regulations governing the trucking industry are among
the most complex in the country.
However, truckers and the trucking industry are being given an excellent chance
to help rectify these problems. For the first time since the Code's inception
in 1965, the Labour Program office of Human Resources Development Canada has
launched a commission with a general mandate to review labour standards and
to submit a list of recommendations for options to Frank Fontana, the federal
Labour and Housing Minister.
This is where you come in. The Commission is currently seeking submissions from
interested experts, business, labour, and community organizations, as well as
individual workers and employers, in an attempt to bring the Code up to date
to the working realities of the 21st century - including the realities of working
life on the road.
"Basically, the areas we're interested in hearing about from the trucking
industry involve labour standards - hours of work, overtime, vacation, holidays,
benefits and entitlements you would get in a work relationship," says David
Leroux, a technical advisor on labour standards with the Client Education &
Training Branch of Human Resources and Skills Development Canada - Labour Program.
"How to calculate a general holiday, for example; or remuneration - how
a truck driver gets paid is quite unlike other occupations. They don't get regular
hourly rates that tally up at the end of the week," he says. "In trucking,
their whole compensation package is based on a variety of things and so many
possibilities, so the potential for a calculation problem is there all the time.
All of which contributes to the number of complaints we get."
Leroux suspects the Commission will hear from drivers who've had problems with
vacations, general holidays, overtime, not to mention hours-of-service woes
and "what is on duty and what is off duty - because we run in tandem with
federal transportation laws and U.S. laws, so there's complications simply between
government agencies that need harmonization and that the Commission should address."
Just to get you started, here are few of the questions the Commission seeks
to answer (pardon the bureaucratese):
Do any current provisions of Part III of the Canada Labour Code need improvement?
Are there problems with the application of Part III of the Code that need examining?
What works and what doesn't work from your perspective? Please describe any
solutions you feel might allow the Code to work more effectively.
Are there any important workplace issues not currently covered by Part III of
the Code that should be regulated by labour standards legislation?
Should any issue currently covered under Part III of the Code be dealt with
elsewhere instead, such as another federal statute (for example, the Canadian
Human Rights Act)?
Self-employed persons are not covered under Part III of the Canada Labour Code.
In addition, certain provisions, such as hours of work, do not apply to managers
and specified professionals. Should these exclusions be revised, eliminated
or extended? If so, what criteria should be applied?
Should alternative mechanisms or non-legislative options be explored to give
employers and employees more flexibility to set conditions of employment that,
overall, meet or exceed existing federal labour standards?
Aside from a few amendments made here and there, the Canada Labour Code's labour
standards have not been scrutinized in 40 years, so this is a real opportunity
to help bring these regulations into the modern age. The Commission is going
to look at the Code in total, listen to stakeholders - including all of you
- and come up with amendments to the Code that will be workable for a very modernized
The Sleeping Giant
Among the more contentious issues truckers have an opportunity to address in
this exercise is the status of the owner-operator under Part III of the Code.
Most of us recognize the owner-op as self-employed, but historically owner-ops
have been regarded as employees, dependant contractors, and independent business
operators. In fact - at least as far as Part I is concerned (dealing with labour
relations) - owner-ops are often deemed to be employees under that section of
the Code, and thus eligible for inclusion in collective bargaining units. Mostly
it comes down to the amount of control the 'employer' exercises over the work
routine of the driver (owner-op).
Beyond that, there have been instances where owner-ops, particularly those with
a very close working relationship to the carrier (like people working under
a lease-to-own contract), have been deemed employees for the purposes of collecting
and remitting payroll taxes. The closure of a Manitoba-based carrier several
years ago for non-payment of taxes on behalf of the driver participating in
the program is just one example of the complicated morass truckers find themselves
And to make matters more confusing, there are instances where some owner-ops
feel they should be entitled to some of the benefits afforded to company drivers,
such as statutory holiday pay, vacation pay, and other employee benefits. Part
III of the Code makes no provisions for entitlement of self-employed individuals
for those and other benefits.
Among the questions this review panel could be asked to examine is the role
of the owner-operator with respect to the Code, and exactly where does he or
she stand in terms of entitlement to benefits, who is obliged to remit income
taxes - the carrier or the individual? - and more.
And while there is no direct connection to the current review of Part III of
the Code, the owner-op's position with respect to Canada Revenue Agency and
various Worker's Compensation Boards could hang in the balance.
Even the issue of meal deductibility could be affected. Technically, self-employed
owner-ops are not eligible to collect a deduction using the TL2 simplified method.
Many do, and CRA is looking at that issue now. Who knows if the Canada Labour
Code review committee takes a conclusive position on the status of the owner-op,
but it could have a bearing on how other agencies view owner-ops.
This review is long overdue, and your comments and input to the process could
prove valuable to the outcome. So, give the issue some thought and get involved
in the discussion. It's not often we're asked personally for our opinions on
such weighty matters.