Private Links: Ontario Private Fleets Face Labour Law Discrimination

by Bruce Richards

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drivers – is 60 hours per week in the case of for-hire carriers and 50 hours for carriers involved with ‘cartage’ (an out of date term if there ever was one).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 trucks@pmtc.ca

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  • How do I determine if my company is a “for-hire” carrier or a private carrier?

    On another topic, maybe someone can help answer a question:

    To start work I travel to my employer’s yard to pick-up my tractor and then travel to another location to pick-up the trailer for out-of-town delivery. Each day this takes approximately 1.5-hours of my time. At the beginning I was being paid for this time and now they have stopped paying saying that it is my “travel time.” Am I not correct in assuming that picking up / taking my employer’s vehicle to the get the trailer to make out-of-town deliveries should be on the employer’s time? Thanks

  • The answer is easy,pay all drivers O/T after 44hrs that would level the playing field,sure costs would have to be passed on,a small price to pay I think.Might help regarding the driver shortage.

  • First of all if your an employ , you are to be paid the moment you arrive and log in.

    Secondly , the labour laws for hire carriers are discriminatory, enough of talking to minister of labour. It’s time to take it to Ontario Supreme Court.

    • I think it’s time to shut the whole trucking industry down in Canada and at the borders and stay stopped until the government makes it mandatory to to pay overtime after 8 hrs a day!
      Two things are going to be accomplished:
      1) Drivers are going to make a decent living.
      2) If drivers start making some decent wages you might get some young drivers interested in the trade therefore eliminating the driver shortages.

      • Absolutely, do you know why truck drivers want to work 60 plus hour weeks? Because that is the only way they can pay off their mortgage before they’re 70. Why can’t we get paid decently when we are the actual ones putting our lives on the line. I deal with hauling fuels, dangerous chemicals etc. And I have to work over 60 hours for overtime. How many truckers have sacrificed their families because of these discriminatory overtime laws, thinking they were trying to take care of their family needs, they had no time to spend with them.

  • HI I drive a tri axle dump truck. We do not get paid for our circle check/paperwork. We don’t start to get paid until our air brake is pressed in. (Track-EM device installed in trucks) no pay for adding fluids either.
    However we get a bonus at end of the month if we are efficient, not late, no damage and keep truck clean. However if we don’t do the above we loose the bonus.
    Also do not get paid overtime until after 55 hrs. We work all year round.

  • As a truck driver, I am baffled as to why anyone, especially the ministry, thinks it’s acceptable to pay any truck driver overtime only after 60 hours and not 44 like most other workers! That’s where the inequality exists. Why is this acceptable? Because truck driving is easier, less stressful and it carries less risk and responsibility than other jobs? Is it because sitting in a seat all day really isn’t working? Is it because truckers are superhuman and 60 to 70 hrs a week is nothing for them because they are accustomed to it? What is it? The only reason I can see for overtime over 60 is to financially benefit trucking companies at as usual, the truck drivers expense. If I’m missing something please let me know.

  • It’s a true case of discrimination towards the trucking industry. Why in this day and age a person has to work 60 to 70 hours a week to make a decent living is beyond me. Why in Ontario all other jobs pay overtime after 44 hours while for hire carriers its 60 hours? To say trucking is less stressful is pure crap. I drive across Toronto a lot and what I witness while in a big truck is horrific. I don’t know how some people get a drivers licence in this province and I’m not just talking 4 wheelers either. On top of overtime we should get danger pay just to be out there on the 401 some days. It’s past due to consider trucking a skilled trade and maybe it would attract people to the profession. We have a serious professional driver shortage now and it will only get worse in the future unless something is done to attract good qualified people to the profession.

  • I am the wife of a dump truck driver and furious with the “second class citizen approach” to the rights of these workers in Ontario. It’s disgusting that they do not get paid for their time to “circle check” and he’s lucky he gets paid for travel time if it takes more that 30 minutes to the work site from the employers yard. That’s not the killer here, it’s the fact that they have to work over 60 hours to get OT where everyone in Ontario and Canada get OT at maximum after 44 hours a week. Did you know that if they don’t reach the threshold of 60 hours before the end of the week they can add those hours between their regular hours and 60 to the next day/week where the hours may total 70+. That said, my husband after working over 5 years with the same employer and what about when he’s called off a shift after getting to the yard? I work for Municipal Gov’t. and member of CUPE so you can imagine how upset I get when he gets up at 5am goes into work then gets his day cancelled and with NO PAY. We are all Canadians, and Ontrarians and did you know they don’t even have to get paid stats if they make 8 or 9% as paid vacation? Who in their right mind would come up these idiotic laws?? Obviously the truck drivers were not represented fairly in that part of the legislation!! After working over 35 years in the auto service industry and management, he got laid off in the 2008-09 “flux” movement for 18 months, fell short by one week of receiving extended EI benefits for the “long tenured worker” losing 6 weeks of EI benefits. If that wasn’t enough salt to the wound EI screwed him over again and told him he wasn’t eligible for Retraining Tuition Subsidy and we paid $10,000. that we didn’t have and he found out 3 days into the course that he was eligible for the subsidy but not now cause he already started the training. Thanks Ontario, for incompetent EI reps. Make sure you ask more than one person when the 1st and 2nd doesn’t satisfy you. After retraining and getting a truck and heavy equipment license it took him some time to make his mark in that industry. After working for this trucking company over 8 years he still not sure if he has any rights to 3 weeks paid vacation. Bill 148 had made some positive changes to those working over 5 years with one employer giving them 3 weeks paid vacation but again, was that just for the rest of the working class EXCEPT “truck drivers” who apparently don’t deserve the same rights, and benefits as every other worker in Ontario?? Then again, who knows what Ford may do, maybe continue to treat them like “Outcasts” of this province and country? All the politicians have forgotten about these workers. They’re off work from before Christmas till some years after January 14 if employers have no work planned after New Years. That said he hasn’t worked more than 2 or 3 days/week for the month of January and can’t get EI cause no ROE are given because they still work 2-3 days and that seems enough. How does one live on “iffy” work week? As a CUPE member it’s appalling to see this sort of discrimination, prejudice and inequitable treatment of our working class. Who needs racism when your province and politicians treat their own people with this type of disparity?? DO SOMETHING NOW!!! How do we get the politicians attention to this huge injustice of Construction Truck drivers??

  • I work in the, not for hire sector of the trucking industry. (Private fleet)(Currently paid overtime after 60 hours it should be paid after 44 hours)(Unionized company) We were recently awarded back pay for overtime worked since 2010. We were awarded the pay by an arbitrator, both sides agreed to binding arbitration. 6 months have passed since the decision was handed down, we are still not being paid overtime and we have not seen a single nickel of the back pay. The company has never been fined, no one has gone to jail. So good luck trying to get any money that you are legally entitled to.

  • As a Fleet Owner. Its has become IMPOSSIBLE to make a profit. You risk a million in loans, house as qualitateral. You make such risks and yet others, your employees have no risk. Its not there life that will collapse into a black hole for 20 years upon failure.
    Yet, business owners are treated like they are there to be taxed to death. making only 50cent for every dollar made. ther taxed again on the salary you pay yourself. So, the Fed and Prov own 75% of the businesses time and money.

  • All drivers should be paid overtime over 44 hours per week. It’s quite surprising that’s not the case yet in 2020

  • I retired from a unionized job back in mid 2016 after working 37 years in the communications industry. I left still having kept my A license because I thought that it would come in handy one day.
    So following my retirement, a friend of mine who owns a construction company asked if I could come and haul for him, to which I opted to; not to get rich, but to help him out. As it turns out, he doesn’t pay his core of drivers overtime, and in the summer, these people log long hours especially doing road construction hauling. They don’t see an extra dime for the added hours they need to put in from dawn ’til dusk. So I had mentioned this to my friend who owns the business. He replied, that he doesn’t have to pay overtime under the rules that apply to his situation. I responded that it would be in good faith to show your employees how much you appreciate them, and that you wouldn’t get a big turnover in drivers (unhappy) coming and going like transients. Even when logging long hours, a nice meal past a normal supper hour would be an appreciation of the long hours these human beings put in.
    I get the fact that it keeps prices down for competitive dealings, but when I see the owner purchasing vintage cars, motorcycles, new snowmobiles, water toys, etc…, I can’t help feel that he his reaping the profits off the backs of these hard working people who day in and day out show up faithfully.
    Show some gratitude to these people, and throw them a bone to show how much you do value them? Very sad that the government doesn’t have a law that protects all. But then again, government politicos are only concerned about themselves and how much they stand to make.