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Q: A couple of my competitors contract drivers to operate their trucks. It gives them a major advantage, as they are not required to remit the various payroll taxes, worker's compensation etc. Is this...

Q: A couple of my competitors contract drivers to operate their trucks. It gives them a major advantage, as they are not required to remit the various payroll taxes, worker’s compensation etc. Is this legitimate?

A: Let me declare my bias up front. Personally I find no problem with it. A person who wants to be in the business of offering his or her driving services as a small business in my opinion is no different than a cleaning or lawn care service. Unfortunately, governments with their insatiable appetite for cash don’t see it that way. They want the deductions and monies taxed at source which means an employee rather than contractor status. If you can’t meet their definitions and tests for contractor versus employee status you’re out of luck. I am aware of several “big hits” in this regard where companies have been assessed many thousands of dollars for back deductions. Yes there are companies that structure themselves in the manner you suggest. But I’d strongly advise against it unless you can satisfy government up front and get their approval.

Q: My owner-operators either have their own account with WSIB or clearance certificates. I thought I was O.K. until a friend in the industry relayed a horror story about an independent owner-operator with a clearance certificate who made a successful claim against the company he drove for after being laid up as the result of a serious accident. Have you heard of any situations like this?

A: Yep. WSIB will consider almost any claim. If someone is injured in a work-related accident they will investigate. And despite any prior arrangements, clearances etc. the carrier may be forced to pay up if there is any inkling whatever that the relationship was one of employment. WSIB is motivated by the deep pocket theory.

Q: We fired a driver for employee dishonesty following a WSIB claim. We hired an investigator who videotaped Mr. Injured engaging in heavy work. A complaint was filed and we were told we had no authority to fire the employee without WSIB’s express authorization. Who the hell do these people think they are? This person effectively stole from us!

A: I agree but what your telling sure doesn’t come as any surprise. I hope you stick to your guns and battle this one tooth and nail. WSIB looks for any sign of weakness, usually followed by bellicose talk and heavy threats. I think you’ll win and make sure that if asked you let future potential employers know he was terminated for documented dishonest practices.

Q: I underwent an MTO audit recently. We came out fine and the officer was thorough and fair. But what’s with the body armour, batons, etc? Is there also a tactical squad to take down high-risk CVOR violators?

A:If memory serves me correctly, MTO officers took on their new look a couple of years back and I’m not sure in response to what. No doubt with many thousands of truck drivers there are going to be aggressive incidents from time-to-time just as there would be with any other large group of people. I agree that at least at on-site audits they could shake the bullet-proof vests and weaponry. Certainly other Ministry officers don’t show up on investigations in such gear. And as you note it tends to send a message that “we have to protect ourselves” from these trucker types. As for the MTO equivalent of an ETF, don’t give them any ideas.

Q: Can you settle an in-house debate once and for all. Do my drivers have to note border crossings on their logs? Yes or no?

A: The only time a crossing must be noted is if there is a change of duty status. For example if a driver goes from driving to an on-duty non driving status the crossing location would have to be noted. But in those instances where it’s a PARS load line release etc. and the driver basically blows through, the crossing need not be shown.

Q: I pull my CVOR abstract regularly. As you know there are thresholds noted for accidents, convictions, and inspections as well as an overall threshold. How on earth is that determined?

A:No problem. Add your convictions and inspection thresholds but add your accident threshold twice. Then divide by 4. That will give you your overall threshold.

Q: I have a driver who was charged with fail to maintain log. Fair enough. He screwed up. But I’m upset because we were also charged with permitting such. How does the officer know we would permit this when in fact we suspended the driver for three days? He’s never seen our operation nor have we even been audited in recent years.

A: I’ve always had a problem with these types of charges. For an operator to “permit” a violation to occur essentially means requiring, permitting, tacit consent, acquiescence, or wilful blindness. If your policies and practices cannot be described as such, I’d take that one to court for sure.

Blair Gough is a consultant to the trucking industry and can be reached at 905-689-2727.

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