Trucking industry reviews changes at work in labour laws

by Canadian Shipper

Amendments to Bill 147, the Employment Standards Act, and Bill 139, the Labour Relations Amendment Act, will have some important consequences for the trucking industry and transportation industry in general, according to presenters at the The Private Motor Truck Council of Canada ‘s seminar on the labour law changes, held March 8th in Toronto.

Private Motor Truck Council president Bruce Richards says the PMTC was looking to get some clarity and perspective on the changes from speakers on the panel, and hoped that the seminar would provide some insight into the implications of the changes on the trucking industry.

“We want to raise and broaden awareness of the amendments beyond our traditional membership. There is a lot of uncertainty in the trucking industry on this. We are in consultations with the Ministry on March 31 and we will deal with the issues one on one at that time,” says Richards.

On December 20, 2000, the Ontario Legislature passed Bill 147, the Employment Standards Act 2000. The Bill has already received Royal Assent and new employment standards are likely to come into effect later this year. As well, Bill 139, the Labour Relations Amendment Act, which deals primarily with unionization, was proclaimed in force on December 30, 2000.

Representatives from the Ontario Ministry of Labour, Employment and Labour Policy Branch, a labour lawyer who has many trucking industry clients, and a human resources specialist presented their analysis of the changes as a familiarization exercise for the trucking industry before it gets down to the nitty-gritty of implementation in its day to day operations.

The PMTC will be engaging in consultation with the Ministry of Labour to fine-tune the details and regulations within the amendments later this month. But most salient, among the ever-important sections dealing with vacation, holidays, breaks, lay-offs and terminations, will be issues such as hours of service, overtime thresholds, and unionization rules.

As PMTC president Bruce Richards pointed out, the evolution of the differences in overtime thresholds between private and for-hire carriers is unclear. Under the new ESA, overtime pay kicks in after 44 hours, but for for-hire drivers, overtime kicks in after 50-60 hours.

“The overtime trigger can be taken to apply generally, but the 50-60 hour triggers are also in the regulations currently and will be in the new regulations. The Ministry will have to undergo consultation with the trucking industry to resolve these issues. But none of the existing regulations and special exemptions are expected to be carried forth without special consideration,” says Brendan Flanagan, policy advisor with the Ministry of Labour’s Employment and Labour Policy Branch.

As hours of service under the current and amended ESA do not refer to the hours of service regulations currently practised in parts of the trucking industry, there are some sticky issues to consider in the legalese in terms of how hours of service are defined. For example, under the amended ESA, employees can agree in writing to a continental shift of twelve hours, at a maximum of 60 hours per week, but they are also entitled to revoke that agreement, with two weeks’ notice, without fear of reprisal. The new act provides a maximum eight hour day or “regular day” (of more than eight hours) or 48-hour workweek unless the employee agrees in writing to work excess hours. This, says labour lawyer Christopher Andree, may mean a scheduling problem for some companies. Especially, he says, since the government is making every indication they’re going to take these amendments seriously.

“Now, there’s a newer commitment by government to take this Act more seriously, and the reprisals will be greater. The types of sanctions you may face under this Act are much greater,” he says.

With respect to labour relations, the implementation of Bill 139, the Labour Relations Amendment Act, is also now underway. The Bill will have implications for issues such as unionization, because it in effect strengthens rights of decertification and lays out clearer rules on ratification of contracts for voters. The Bill requires that in first contract situations where a union is trying to certify, there be a separate strike and ratification vote.

“The government committed, in its Throne Speech, to helping employees (who do not wish to unionize). No longer will a ballot arguably confuse employees-there must be a clear choice where the issues are not combined,” says Trevor Rands, senior policy advisor with the Ministry of Labour.

As well, the Bill provides a critical threshold in union applications for certification. Any union certification applications will be barred for one year in the following circumstances: if the union makes two certification applications within six months but withdraws them, if a union withdraws its certification application after the representation vote, and where the union loses the representation vote and the certification application gets dismissed.

“Currently the bar is discretionary and only prevents the same union from attempting to organize again,” says Rands. He said the Bill will also provide for more visibility into union leadership and employees in terms of mandatory income and benefit disclosure. Unionized employers must also make every effort to make their employees aware of the Bill’s contents.

Labour lawyer Christopher M. Andree calls the Bill “an attack on unionization,” but said that the one-year ban doesn’t affect organization drives, just applications for certification. But Andree, who has several clients in the trucking industry, says that despite the protection this ban may provide against the threat of unionization, this kind of activity should provide a wake-up call for trucking companies.

“I suggest to you that if you even experience one drive, it’s a chance for you to get your house in order, because there are obviously some unhappy employees,” he says.

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