Double-Standardized Standards: Ontario labor law trumps HOS
TORONTO -- As if there weren't enough discrepancies between new federal hours-of-service rules and the way some provinces interpret them.
Now most private fleets and a some provincially regulated for-hire carriers are finding out that when Transport Canada drafted the HOS standard, it seemingly didn't bother consulting any of the provincial labor ministries.
As it turns out, private carriers in Ontario, since most are provincially regulated, are subject to the Employment Standards Act (ESA) -- which limits working hours to 44 a week before overtime pay and requires a permit for over 48 hours -- rather than the new HOS rules, which allow up to 70 hours per week and 14 on-duty hours a day.
"HOS makes perfect sense for the trucking industry. The concern is that only for-hire carriers are going to get the advantage of all the hard work that was done," says labor attorney Chris Andree of Lawrence Lawrence Stevenson LLP. "Private carriers are typically bound by ESA. The two aren't married to one another."
In order to ask drivers to work more than 48 hours, companies must get written permission from the employee or union as well as acquire a permit from the Ministry of Labour. Theoretically, there's no limit to the hours you can request, although it's Andree's suspicion that if you want more than 60 in a week "you're not going to get it."
Furthermore, companies that apply to the ministry for a permit will likely open themselves up to even more scrutiny. When a company applies for such permits it has to certify it has written agreements for those employees.
"The ministry, as I understand it, puts you on a list of companies [eligible] for auditing. So now they have a good excuse to come in," says Andree. "While they're there to check up on the [written agreements] why not also look at how you're calculating overtime and vacation pay, etcetera."
Provincially regulated for-hire carriers also fall under the ESA. However, Section 18 of the Act exempts "highway transport" carriers (truckers that haul beyond a 5 km radius) from the same limits private fleets are bound by. For-hire truckers must still pay drivers overtime (based on kilometers traveled per hours worked) but only after 60 hours, not 44. In the same section, it isn't stated whether a for-hire carrier requires a permit for employees working over 60 hours. So, there's literally an "unwritten rule" that permits aren't mandated.
"The idea is if you fall under section 18, you don't need one, or why else would this section exist [for overtime over 60 hours]?" Andree explains.
There isn't a clear-cut reason why the ESA is applied more liberally to the for-hire sector even though private truckers do the very same work. Labor experts assume it's because the government doesn't consider trucking to be private companies' primary business.
So what happens if a provincially regulated fleet prays at the HOS altar instead of ESA? "I'm not sure it's going to be a good result for HOS," says Andree. "You can breach ESA (48 h in a week) without breaching HOS (70), but the reverse is not likely true."