ESA VS HOS: The battle continues

TORONTO — Not only are there significant inconsistencies in the way various provincial transport departments apply federal hours-of-service rules, but the driving time regime remains at odds with provincial labor legislation as well, trapping most private fleets behind the eight ball.

Today’s Trucking first reported the discrepancy between Transport Canada‘s HOS regime and (to use just one example) Ontario’s Employment Standards Act (ESA) in 2007, but very little has been done to close the gap since then, says Chris Andree of Gowling Lafleur Henderson LLP

(Be sure to read about the other HOS bombshell Andree’s colleague Dean Saul reveals in the current August issue of Today’s Trucking and also available as this week’s online feature. Click here).

Double Standard: Private carriers are still
subject to stricter provincial labor codes.

Private carriers in Ontario especially, since most are provincially regulated, are subject to the Employment Standards Act (ESA), which limits working hours to 44 a week before overtime pay and requires a permit for over 48 hours — rather than the HOS rules, which allow up to 70 hours per week and 14 on-duty hours a day. The same is true in most other provinces.

While Ottawa’s rules make sense for the trucking industry, only for-hire carriers can take advantage of them.

Provincially regulated for-hire carriers also fall under the ESA. However, in Ontario, Sec. 18 of the Act specifically exempts “highway transport” carriers (truckers that haul beyond a 5 km radius) from the same limits private fleets are bound by. For-hire truckers must still pay drivers overtime (based on kilometers traveled per hours worked) but only after 60 hours, not 44.

Asked about the issue more recently, Andree says there’s no political motivation to end the two-tiered policy.

"The inconsistency between HOS and hours of work restrictions under the various provincial employment standards legislation continue to put private fleets at an unjustifiable competitive disadvantage which results in systemic violations of the employment legislation and increased costs to fleet operators, and ultimately consumers," he says.

"A concerted effort by the private fleets needs to be directed toward the Ministries of Labour in the provinces to address this issue for the benefit of all." 

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