Are You in Violation of the Labour Code?
CHARLOTTETOWN, P.E.I. – Some carriers may be in violation of the Federal Labour Code (FLC) while carrying out daily operations and not even know it.
While most industries fall under provincial jurisdiction when it comes to labour issues, trucking is one of the few regulated by the federal labour code.
That is likely the leading cause of confusion about the industry’s legal responsibilities, according to government officials.
Charles Landry, labour affairs officer and Jeannine Ettinger, manager, labour program for Human Resources Development Canada were at the Atlantic Provinces Trucking Association’s annual convention held in Charlottetown, P.E.I. on Oct. 29 to speak to carriers about their own labour practices.
According to them, three issues – hours of work, holidays and termination – cause the most confusion.
Here are their set of rules:
Hours of work
Employees on a regular salary can work eight hours a day and up to 48 hours each week maximum. Any hours beyond that limit have to be compensated with overtime pay.
Overtime pay must be a minimum of time-and-a-half and the rate for time-and-a-half is derived from the hourly wage because trucking is under the federal jurisdiction. If the industry fell under provincial law it would be based on minimum wage, explained Ettinger.
Even if a dispatcher’s or mechanic’s work weeks total less than 48 hours but they work more than eight hours on one particular day, they must still be paid overtime for that day, she added.
City drivers (drivers who haul within a 10 mile radius of their home terminal), may work nine hours a day and 45 hours each week, before overtime pay kicks in, Ettinger said. Highway drivers’ hours are determined by the Hours of Service regulations for commercial drivers but are limited to a 60-hour workweek.
“It’s very normal for us to visit a company and lay down penalties right away,” she warned. “So the best thing to do as an employer is keep track of hours so that there is a record.”
If there are no records and a driver initiates a dispute or goes to the labour board, the court usually rules in favour of the driver, Ettinger said.
There are nine general holidays for which a company has to pay employees, said Landry. These nine include New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day.
If employees are required to work on a general holiday, they are entitled to their regular rate of pay for one day plus the number of hours worked at time-and-a-half, he said.
For workers whose hours differ day to day, the number of hours should be derived from the average of regular earnings for the 20 days preceding the holiday, he said.
The company may designate another day in lieu of a holiday but 70 per cent of the company must approve the switch and post notice 30 days prior to the substitute day.
When deciding to terminate employment, it is important to consider the frequency, severity, repetition and the nature of the employee’s behaviour, said Landry.
Four milestones that line the path to dismissal are informal verbal warnings, written warnings that should be attached to personnel files, suspension without pay and finally dismissal, he added.
For dismissal without just cause, the worker needs two weeks written notice or two weeks pay in lieu of the notice, unless the employee has less than three months of continuous service with the company.
“Given this is the trucking industry, I don’t think we really want to send a driver out on the road in our equipment with a two-week written termination warning. So it’s probably best to opt for two weeks pay,” said Landry.
If an employee quits or his employment is terminated for a just cause, severance pay is not required, said Landry.
But keep in mind that if a driver quits and gives the company two weeks notice and the notice is not accepted, then the company is considered to be terminating the driver’s employment and severance pay may apply.
Establishing just cause for termination can be done through the company policy, provided the driver signs it when he begins work, said Landry. The policy should explain under which circumstances staff will be disciplined or dismissed.
Use available resources
“We ask for files and records first thing when you come to us so be sure to hang on to them,” advised Ettinger.
Records will allow a company manager to deal with a problem right away and not let it fester, added Landry.
“The best thing to do is that when someone in your company is frustrating you and you feel like you need to take action, call us and we will walk you through the situation or we can also send you case studies that might apply,” said Ettinger.
Taking precautions is the best way to stay on top of labour code issues.
“It doesn’t mean that drivers won’t come to us and complain, but we just want you to be prepared,” Ettinger said.
For more, visit http://labour.hrdc-drhc.gc.ca
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