The 23rd of January marked the first anniversary of the so-called Mackie decision, a Canada Industrial Relations Board ruling that allows a Teamsters local to collectively bargain for about 200 drivers working for Mackie Moving Systems of Oshawa, Ont. The group includes owner-operators, drivers from outside agencies, and drivers employed by owner-operators, hauling extra-provincially for Mackie’s general freight division on General Motors lanes.

The certification order and the reasons for the decision apply only to certain aspects of Mackie’s business, but they say a lot about the legal exposure facing businesses that use “independent” contractors. In essence, the CIRB says that if you exert day-to-day control over a contract worker — determine his hours, give him a company ID badge, train him when he needs it, discipline him when he screws up, and otherwise treat him like he’s on the payroll-he is in all likelihood economically dependent on you. That makes him a de facto “employee” under the Canada Labour Code, and able to be represented by a union.

We covered this story last year (House of Union Cards, March 2002), but it’s worth rehashing for a couple of reasons.

First, the CIRB has been hearing final arguments on a similar petition by contract drivers at Verspeeten Cartage, an Ingersoll, Ont., trucking company that also hauls for General Motors. The ruling should be released in the coming months, and you can bet it will parallel the Mackie decision. The circumstances are comparable, and indeed, the reasons for the Verspeeten decision will be written by CIRB chair and Mackie author J. Paul Lordon.

Second, we’re living in the sort of dank business climate where organized labour thrives. People are nervous about their jobs. Revenues may be up, but so is the Canadian dollar, insurance premiums, and the price of new iron. The final tab for complying with security measures for cross-border work is still anyone’s guess, and with war in Iraq seeming inevitable, the cost of diesel fuel is at an unprecedented high.

An owner-operator who bought a truck to gain a sense of control over the course of his life is learning that, in fact, he has little control with respect to his income, his costs, or his future. He’s confronting the harsh reality that his contract is one that can come and go according to the changing needs of the fleet and its customers. He’s feeling dependent as hell, no different than the agency driver who, if he’s been to four annual company picnics, desperately wants to see a fifth.

When Canadian trucking companies want to dump capacity, owner-operators and agency drivers are the first to get the heave-ho. That’s business. But don’t think that unions like the Teamsters and Canadian Auto Workers aren’t paying attention.

Think about it. When production workers strike a car plant, vehicles still get made because the company can always scrape up enough non-union managers to at least keep the lines moving. But when a union can control the freight at the door, a strike inside the plant will shut the building down completely. For labour unions, organizing truck drivers is another opportunity to increase the intensity of pressure on manufacturers, just like the old days.

In your office, the Mackie decision and the Verspeeten hearings should add volume and momentum to discussions about the dependent nature of the owner-operators and agency drivers you use with respect to labour law.

“These issues of control and dependence stack up like weights on a teeter-totter,” says Fred von Veh, a partner and senior member of the employment and labour law group at the Toronto office of Bennett Jones. “No one thing will tip the balance, but every item counts. Yes, every driver may for practical reasons be part of the same dispatch process, but do your agency drivers have to wear the same uniform as the rest of your employees, or eat in the same lunchroom?”

There’s one more significant thing about Jan. 23: because the anniversary date passed without a collective agreement between Mackie and the Teamsters, the window is open for an application to decertify. To date, one hasn’t been filed — partly because there are so few agency drivers still around to sign it. Most are long gone from Mackie, the result of lost lanes and, one hopes, more enlightened HR practices.

A burning question: Are truck cabs required to be smoke-free environments?
by Raymond Mercuri
August 2003 issue

A while back I had to deal with an owner-operator and a co-driver who were having problems making on-time arrivals. Their route was regularly scheduled, operating between two terminals.

We hadn’t had instances where there were on-going arrival problems with any other of our team operators. The arrival times had been set up so that drivers could easily accomplish them while staying in compliance with hours-of-service and road-speed rules.

Typically, discussions about delays end up focusing on getting a driver to simply adhere to on-time departures, and/or to report for duty on time. Some late arrivals are weather-related and beyond a driver’s control, and I’m the first person to support a driver’s decision to pull over and wait out poor conditions. But more often than not, we conclude that the late driver is simply a poor manager of his time.

Well, in this case, none of the above applied. The owner-operator agreed that his team was not making the route times. Yet he had no over-the-road breakdowns and weather had not been an issue, either. He also agreed that operations had been getting him out on time.

So, point blank I asked him what other factors (usually excuses) could account for the delays. “The second team driver,” he said.

I asked him what was the issue with his second team driver. The answer was an eye opener.

“He smokes,” was the reply. “And I won’t let him smoke in the truck.”

Turns out the owner-operator was pulling over every half hour to allow his second driver the opportunity to smoke.

So I asked him, “Is your workplace a ‘smoke free’ environment?”

Since he is the employer, it’s his decision to make. If he deemed it to be “smoke free,” I pointed out that his employees should be allowed to take a regular smoke break. Further, I told him that I work in a smoke-free workplace and as an employee I am entitled to two 15-minute coffee breaks and a lunch during my workday, so why didn’t he simply take control and lay out similar rules to his employee?

This is the end of that particular story, but the subject of smoking in the cab — as a health and safety issue — has nagged me for years.

The closer I looked at this situation, the more complex it became. Would a trucking company’s no-smoking policy apply to owner-operators? How should you manage team operations or slip-seating, where non-smokers are mixing with smokers? Do unions have a position on the subject? Whose jurisdiction would this fall under? Federal or provincial?

According to the Canada Labour Code Part II, a “workplace” means any place where an employee is engaged in work for the employee’s employer. A “hazardous substance” includes a controlled product and a chemical, biological, or physical agent that, by reason of a property that the agent possesses, is hazardous to the safety or health of a person exposed to it. “Safety” means protection from danger and hazards arising out of, linked with, or occurring in the course of employment.

Now refer to the Act under “duties of employers,” Section 124: “Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.”

Government agencies routinely inspect and monitor air quality in the workplace, and may issue mandatory orders to address these situations. Has any agency ever done air-quality testing in the cab of a truck or ruled on smoking in this workplace?

I’m not an anti-smoker. I indulge in the filthy habit myself. But I do respect the rights of others, so I don’t smoke in the workplace or in my home. I know my smoking is a danger to my co-workers, friends, family, and to my children.

One last thought. Does smoking pose any other safety risks? Has a mishandled cigarette ever been a contributing cause in a vehicle accident?

Have I opened a can of worms?