Discrimination is, almost without exception, not only frowned upon by the general public but also banned by law. Regulators have been careful to protect the right to equal treatment, even when it may appear to trample on the rights or practices of majority groups.
It’s difficult to comprehend then why private trucking, a large and important sector of the trucking community, should need to tolerate Ontario’s discriminatory regulation regarding overtime thresholds.
In Ontario, the overtime threshold – the point at which overtime kicks in for truck drivers – is 60 hours per week in the case of for-hire carriers and 50 hours for carriers involved with ‘cartage’ (an out of date term if there ever was one). But private carriers are required to pay their drivers overtime after only 44 hours per week.
This inequity exists in the way Ontario’s Employment Standards Act is written. Specifically, the ACT defines the overtime thresholds (50 and 60 hours as described above) for drivers of vehicles used in the business of carrying goods for hire and for drivers of trucks that are operated by holders of operating licences. Because the act stipulates overtime thresholds for the for-hire sector and is silent about drivers for private fleets, private carriers drop into the general employment standard, which has an overtime threshold of 44 hours per week.
During consultations leading to the Employment Standards Act 2000, the PMTC, with the assistance of the labour law firm of Crawford Chondon & Andree LLP, explained to the Ministry of Labour how this inequity adversely affects private fleet operators.
No one at the Ministry of Labour could explain why drivers engaged by private fleets have a different overtime threshold than those of the for-hire sector, and no one could explain why or how the initial regulation came to be written in such a fashion.
Everyone in government that we have spoken with on the subject over the past 10 years, including a succession of Ministers (both Labour and Transportation), as well as a number of directors, assistant directors, and policy advisors within the Labour Ministry, agrees with the PMTC’s view that the regulation unfairly discriminates against private carriers. But despite the universal concurrence, the Ministry of Labour has not moved to correct the inequity.
Thus, we are left with the following ludicrous scenario: two trucks are moving down the road, one operated by a for-hire carrier and the other by a private carrier. As the two drivers complete their 44th hour of work that week, one driver is entitled to an overtime premium while the other is not.
Both drivers are doing essentially the same work – driving a truck – in essentially the same environment. Both bring essentially the same skills to the job. Clearly, the disparity between the way private fleet and for-hire fleet operators are treated cannot be justified based on the duties and responsibilities of the drivers.
Nor is there a social policy explanation for the disparity. Legislation finds it acceptable for drivers to work as many as 60 hours per week, and neither the private fleet operators nor the majority of drivers wish to restrict the hours of work to less than 60.
The only remaining question is why are they treated differently by Ontario? Our research with Labour Ministries has yet to turn up any other Canadian jurisdiction that differentiates between drivers for private fleet operators and those that drive for for-hire fleets when establishing overtime thresholds. That’s exactly how it should be – equal treatment.
Manufacturers, distributors and retailers choose to operate a private truck fleet for a number of reasons. Many want to maintain a level of control, which helps to ensure their goods are delivered safely, on time, efficiently and cost-effectively. The effect of the current Ontario provisions is to penalize these companies for choosing to operate in a way that enhances their business and benefits the Ontario economy.
Under the current system, private carriers pay a premium for drivers after 44 hours per week. Their choices are to pay that premium for hours in excess of 44, limit their drivers to 44 hours per week, or obtain an operating authority – effectively establishing themselves as a for-hire fleet. In either of the first two cases the private fleet is at a competitive disadvantage. The third choice is not one that all private fleets find satisfactory. Therefore, the current regime actually encourages drivers to work in the for-hire sector, where they can work up to 60 hours per week and earn more total compensation.
With prodding from the PMTC, the Ontario Ministry of Labour consulted the trucking industry on this matter. But 18 months have elapsed since those consultations were completed and still the Ministry has not moved to correct the inequity.
Private carriers are not seeking preferential treatment – just equal treatment. It’s well past time for the Ministry of Labour to correct this inequity.
-The Private Motor Truck Council of Canada is the only national association dedicated to the private trucking community. This column presents opinions on trucking issues from the perspective of private carriers. Your comments are invited and can be addressed to firstname.lastname@example.org
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