Q. You told one of our owner-operators that he is free to book his "personal use" driving as off-duty. I am told this is not the case, and that both he, along with us, can be charged as this is not permitted under the regulations, nor is it MTO po...
Q. You told one of our owner-operators that he is free to book his “personal use” driving as off-duty. I am told this is not the case, and that both he, along with us, can be charged as this is not permitted under the regulations, nor is it MTO policy. What’s the story here?
A. Here we go again. First policy means nothing when the regulations state or allow otherwise. And the Regulation is clear in this regard, with the definition of “on-duty” being:
“…time during which a driver performs activities for an operator at the operator’s request, as an employee of the operator or as a result of a contractual relationship with the operator, except for time during which the operator relieves the driver from responsibility.”
So first, let’s chuck the on-the-fly policies, rules, definitions, or whatever they are, espoused by some that you must record driving time when driving a commercial motor vehicle. That is NOT what the regulations state. There is a clear provision that an operator can relieve a driver from responsibility. Period! And I think it’s pretty clear that the responsibility spoken to in the definition relates to that associated with the hours of work regulation. For the life of me, I do not understand how anyone can suggest that when a driver is tooling down the road, far removed from any control or concern of his “operator”, that he is on duty “driving”, for his operator.
For those who feel there is no way that driving a CMV should be able to be recorded as off-duty, the USDOT regulatory guidance clearly allows for such. And the Ontario regs were in many ways, modelled after those regulations.
I would strongly suggest a written company policy identifying those situations where your drivers are not considered on-duty for hours of work purposes in accordance with the definition of “on-duty” under the Regulation. Make that part clear. To further cover it off, have the owner-operator obtain his own CVOR for those situations where he is the “operator”. And of course as an operator, he should also be able to draft a similar policy tied to what is on duty versus off duty.
Better still, if being able to drive a commercial motor vehicle can be recorded as off-duty in certain circumstances and in accordance with the legal definition, then might I suggest that the Regulation be amended.
Q. A few years ago, I underwent a facility audit of my records. In addition to the usual documentation required, I was asked for driver payroll records which I was reluctant to hand over. I was informed that I was required upon request to allow the auditor to review whatever it was he asked for, as this is permitted under the hours of work regulation. Do you agree with that?
A. The pertinent section under the Highway Traffic Act Regulation (4/93) is summarized as follows:
1. An operator shall retain all books, documents and records for a period of 6 months, and a record is defined as any information recorded or stored by any means.
2. On the request of an inspector, the operator shall surrender for inspection the above books, documents and records.
So it would appear that payroll records are fair game. But I don’t buy into it for several reasons notwitstanding what appears to be a sweeping definition and requirement under Section 15. First, my approach with payroll records is that they are proprietary and a matter between the employer and the employee. Second they are not records required to be maintained for purposes of the hours of work regulation as is a driver log for example. And third, there is a long-standing legal principle to the effect that you’re not entitled to get out the back door what you can’t obtain through the front door. I have heard on occasion the hard approach, that a record is a record and it must be kept for 6 months and made available on request. Well if that’s that case, then consider the driver trip inspection report that carries a 3-month retention requirement. Would it now be required to be retained for 6 months under the hours of work regulation? I think not.
Q. We operate outside of the 160-km radius of our home terminal, and therefore our drivers are required to maintain logs. The drivers may be in several cities during the day doing numerous deliveries in each. One of our drivers was warned that he must accurately record the time spent in each duty status. What is your view?
A. As a general rule, here’s what I would suggest, which I have found has been considered acceptable. When entering the city, town etc., have your drivers bring their log up to that point in time. Prior to leaving the local area, enter a fair estimate of the time spent in each duty status, then bring the line to the point at which they now begin to drive. In the remarks section, make a notation, citing the location with the notation “local delivery or pick-up”. I haven’t encountered a problem where the log is done as such.