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Have Your Say

by Duff McCutcheon
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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 workforce.

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 in.

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.