The overtime provisions for truck drivers under Part III of the Canada Labour Code have been a source of confusion and concern for many years. At the root of the problem is the fact that most drivers are paid on a productivity basis (ie. per mile) whereas the rules are hourly based.

There is also significant confusion around definitions.

‘City Drivers’ are entitled to overtime after 45 hours in a week or nine hours in a day while ‘Highway Drivers’ are entitled to overtime after 60 hours in a week. A truck driver is deemed to be a city driver when he/she: 1) Operates exclusively within a 16 km radius of his or her home terminal; or, 2) Is classified as a city motor vehicle operator in a collective agreement; or, 3) when they would be defined as a city driver according to the prevailing industry practice in the geographical area where the driver is employed.

It is this last element which is particularly problematic.

In the event of a complaint (this is a complaint-driven process), and unless the definition of a city driver for the company in question is dealt with in a union contract, Human Resources & Social Development Canada (HRSDC) inspectors conduct a survey to determine the prevailing industry practice in the region to determine who is a ‘city driver’ and who is a ‘highway driver’ and how they are paid overtime.

How the surveys are conducted is a rather murky area and appears inconsistent across the country.

Sometimes, the survey results can also create inconsistent rulings even within regions. For example, at the time of writing a survey was being conducted in Mississauga, Ont.

There is nothing to prevent and there is always a risk, of a ruling that imposes a different “prevailing industry practice” in Mississauga compared to Toronto, Brampton or Oakville.

So, it is important that carriers understand how the surveys are conducted and take steps to avoid providing faulty information.

The results of a survey -whatever they are -will establish the legal definition of a ‘city’ driver for the purpose of paying overtime for all carriers in a specified geographic area.

First, companies in the area are contacted by letter requesting their participation in the survey. How the area is defined, which carriers are selected to participate, from which segments of the industry, and how many carriers are selected appears somewhat arbitrary.

The letter also includes a list of the questions so the carrier can prepare its responses.

The survey itself is conducted by telephone.

The inspector is supposed to ensure that the survey responses are obtained from a person who is qualified to describe the company’s practices and immediately after conducting a telephone survey the inspector will send each survey participant a letter with an attachment on which the inspector has recorded the employer’s responses.

On the basis of this survey, HRSDC determines the “prevailing industry practice” in the geographical area for establishing driver eligibility for overtime pay. A prevailing industry practice will be deemed where at least 70% of respondents use that practice.

In the past, problems have arisen when the people contacted at trucking companies did not fully understand the importance of these surveys and offered up definitions of ‘city’ or ‘local’ drivers that had more to do with operational practices rather than payroll practices concerning eligibility for overtime pay.

The result is that they may say something like “the company deems a driver who travels no more than 100 km from their home terminal a local driver” without understanding that HRSDC could then determine that all drivers who travel less than 100 kms are ‘city drivers’ and should be paid overtime after 45 hours.

Based on faulty information, a survey undertaken a couple of years ago determined that drivers in the Kitchener-Waterloo-Cambridge area should be paid overtime as city drivers if they travelled less than 100 km from their home terminal during a day -a result that did not jive with what most carriers in the region felt was the prevailing industry practice.

After much hard work, and the threat of a legal challenge, HRSDC was convinced to re-do the survey and they found that the local practice was actually to use a 16 km radius of the home terminal (as is stated in the regulation).

Indeed, as it pertains to the city vs highway driver definitions, the 16 km radius provision actually provides useful guidance.

If all carriers in all regions actually used the regulatory standard there would not be an issue.

Regardless, if an HRSDC survey is ever conducted in your area, it is critical that all carriers ensure that a similar misunderstanding does not occur.

If you are contacted by HRSDC to participate in a survey, you should ensure that senior management is alerted and oversees the company’s responses.

Ensure that you carefully consider what it is that HRSDC is actually asking and what your policy is with respect to overtime payments.

Do not use any definitions you have for ‘city’ drivers that are operational in nature, only answer the survey based on what your human resources policy is and the definition of ‘city’ driver you use for determining overtime pay.

If all carriers do this, it will ensure that HRSDC gets accurate information regarding the prevailing industry practice in your area regarding overtime pay.

-David Bradley is president of the Ontario Trucking Association and chief executive officer of the Canadian Trucking Alliance.

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‘If you are contacted by HRSDC to participate in a survey, you should ensure that senior management is alerted and oversees the company’s responses.’

David Bradley