Survey Procedure for Ascertaining a Prevailing Industry Practice in a Geographical Area - Motor Vehicle Operators Hours of Work Regulations - 700-10-IPG-071

Effective Date: December 20, 2006

Revised: November 2012

Section 2 of the Motor Vehicle Operators Hours of Work Regulations (MVOHWR) defines when an employee may be classified as a city motor vehicle operator or a highway motor vehicle operator. The occupational classification will establish the overtime threshold for an employee.

1. Subject

Section 2 of the Motor Vehicle Operators Hours of Work Regulations (MVOHWR) defines when an employee may be classified as a city motor vehicle operator or a highway motor vehicle operator. The occupational classification will establish the overtime threshold for an employee.

2. Issue

Employees must be paid an overtime rate for working hours in excess of standard hours. For city motor vehicle operators, standard hours are normally 9 per day and/or 45 per week. For highway motor vehicle operators, standard hours are normally 60 per week. Given the significant difference in standard hours between city and highway motor vehicle operators, it is important to establish the occupational classification of the employee.

The MVOHWR defines that an employee may be classified as a city motor vehicle operator when:

  1. the motor vehicle operator operates exclusively within a 10 mile (16 km) radius of his home terminal;
  2. the motor vehicle operator is not a bus operator;
  3. the motor vehicle operator is classified as a city motor vehicle operator in a collective agreement;
  4. the motor vehicle operator is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed.

An employee (excluding bus operators) will always be considered to be a city motor vehicle operator when the employee operates exclusively within a 10 mile (16 km) radius of the employee's home terminal or if the employee is classified as a city motor vehicle operator under a collective agreement.

For cases that do not meet these criteria, it will be necessary to ascertain what the prevailing industry practice is in the geographical area where the employee is operating. This is accomplished by conducting a survey of federal jurisdiction trucking companies in the geographical area where the employee is employed.

3. Definitions

"Bus" means "… a bus that is designed and constructed to have a designated seating capacity of more than 10 persons…" The term "bus" is not defined by the MVOHWR. For the purposes of this IPG, the definition of a "bus" contained in the definition of Transport Canada's "commercial vehicle" in the Commercial Vehicle Drivers Hours of Service Regulations is used. (1)-footnote 1

"Bus operator" means a motor vehicle operator who operates a bus.

"City motor vehicle operator" means a motor vehicle operator who operates exclusively within a 10 mile (16 km) radius of his home terminal and is not a bus operator and includes any motor vehicle operator who is classified as a city motor vehicle operator in a collective agreement entered into between his employer and a trade union acting on his behalf or who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed.

Note regarding "City motor vehicle operator":

  1. The word "exclusively" in the previous definition comes from the regulation and is to be interpreted to mean while performing that function. The meaning of "exclusively" within this context was further defined by Referee Anne Wallace in her decision on a Wage Recovery Appeal (Case YM2727-267, In the Matter of a Wage Recovery Appeal between L. E. Matchett Trucking Co. Ltd. and Allan Kassian, Ronald Christiansen and Russell Davidson). Wallace ruled that "exclusively" applies to each route or trip taken by a driver. If a driver travels beyond the city driver area during a trip, he becomes a highway driver for that trip. Where a driver takes more than one trip in a day or in a week, some of which are city and some highway, then, the rules for mixed employment apply.
  2. City motor vehicle operators are sometimes referred to within the trucking industry by other job titles, such as "city drivers", "local drivers", "pick-up and delivery drivers", or other similar job titles.

"Highway motor vehicle operator" means a motor vehicle operator who is not a bus operator or a city motor vehicle operator.

Note regarding "Highway motor vehicle operator":

  1. Highway motor vehicle operators are sometimes referred to within the trucking industry by other job titles, such as "Highway drivers", "long haul drivers", or other similar job titles.

"Home terminal" means "… the place of business of a motor carrier at which a driver ordinarily reports for work". The term "home terminal" is not defined by the MVOHWR. For the purposes of this IPG, the definition of a "home terminal" contained in the Commercial Vehicle Drivers Hours of Service Regulations is used. (2)-footnote 2

"Motor vehicle" means any vehicle that is operated by an employee and is propelled otherwise than by muscular power but does not include any vehicle designed for running on rails.

"Motor vehicle operator" means a person who operates a motor vehicle.

"Shunter" means a motor vehicle operator who works exclusively within the yard of the employer's terminal. A shunter does not meet the definition of city or highway driver and is to be paid overtime pay after the standard of 8 hours per day and 40 hours per week.

"Standard hours of work" means standard hours of work as defined in sections 5 and 6 of the MVOHWR:

Pursuant to section 5 of those regulations, the standard hours of work of a city motor vehicle operator shall not exceed nine hours in a day and 45 hours in a week. In a week in which a general holiday occurs that, under Division V of the Act, entitles a city motor vehicle operator to a holiday with pay in that week, the standard hours of work of the city motor vehicle operator in that week shall not exceed 36 hours.

Pursuant to section 6 of those regulations, the standard hours of work of a highway motor vehicle operator shall not exceed 60 hours in a week. In a week in which a general holiday occurs that, under Division V of the Act, entitles a highway motor vehicle operator to a holiday with pay in that week, the standard hours of work of the highway motor vehicle operator in that week shall not exceed 50 hours.

"Working hours" means all hours from the time that a motor vehicle operator begins his work shift as required by his employer until the time he is relieved of his job responsibilities but does not include any time:

  1. during a work shift when he is relieved of his job responsibilities by his employer for authorized meals and rest while en route;
  2. spent during stops en route due to illness or fatigue;
  3. resting en route as one of two operators of a motor vehicle that is fitted with a sleeper berth; or
  4. resting while en route in a motel, hotel or other similar regular place of rest where sleeping accommodation is provided.

4. Procedures

4.1 When to Conduct a Survey

A Labour Program inspector will conduct a survey only when it is necessary to determine the occupational classification of an employee as being either a city motor vehicle operator or a highway motor vehicle operator.

In order to determine the applicable standard hours for an employee, an inspector must determine which element of the city motor vehicle operator definition applies. If the "prevailing industry practice" element applies, then the inspector must conduct a survey of federal jurisdiction trucking companies in that geographical area to ascertain the prevailing industry practice.

It must be emphasized that it is the employers in the trucking industry, not the Labour Program, who determine the local industry practice. The Labour Program ascertains what that prevailing industry practice is by conducting a survey of those local employers.

Note: When a survey is being conducted in order to investigate a complaint, this IPG is to be used in conjunction with OPD 700-10 - Complaints Handling - Canada Labour Code - Part III .

4.2 Survey Procedures

In order to ensure the consistent application of section 2 of the MVOHWR, inspectors are to adhere to the following procedures when conducting a survey.

Step 1 - Determine Geographical Area

Identify the geographical area for the purpose of the survey.

The geographical area will be identified by using the economic regions established by Statistics Canada (see appendix H). These economic regions are available on the Statistics Canada website.

This website provides a list of provinces. Each province contains one or more economic regions. Each economic region may be broken down into progressively smaller units, starting with census divisions, then census subdivisions, and finally localities.

The inspector will consult with their Manager and Technical Advisor when determining the geographical area. Consideration should be given to local demographics in order to determine if a geographical area should be based on an economic region, a census division, a census subdivision, or a locality. As a general principle, surveys conducted for urban areas should utilize a unit that is sufficiently large to encompass that urban area. Larger units, such as economic regions or census divisions, may be more appropriate for areas with small numbers of employers for sample purposes, such as rural areas.

Once the geographical area is identified, the inspector should determine whether the Labour Program has conducted a survey for this area within the past five years. If a survey has been completed within this time period, a new survey is not required.

Step 2 - Notification of geographical area determination

When the geographical area has been determined for the survey, the Regional Technical Advisor will immediately notify:

  1. the Manager, Labour Standards at NHQ, Workplace Directorate that a survey is being conducted (Appendix A);
  2. the District Manager of the Labour Program District where the survey is to take place that a survey is being conducted, and that overtime complaints from motor vehicle operators in the geographical area should be placed on hold pending the outcome of the survey (Appendix A); and
  3. the Canadian Trucking Alliance, and any applicable provincial trucking association, to inform the road transport industry associations that a survey is being conducted (Appendix A.1).

Step 3 - Determine Survey Sample

Identify a sample of federal jurisdiction trucking companies to be contacted within the geographical area.

The inspector will consult with their Manager and Technical Advisor when determining the size of the sample. Sample size may vary depending on the size of the geographical area and the number of transportation companies in that area.

The minimum number of companies in a survey sample is six. This is necessary to ensure the confidentiality of survey respondents (3)-footnote 3 . Where a minimum sample of six companies cannot be met, the inspector should increase the geographical area to the extent necessary.

There is no set number for the maximum number of companies in a survey sample. A sample should consist of as many respondents as is practicable, and should include a sufficient number of companies to demonstrate what the prevailing industry practice is in that geographical area.

The survey sample should only include companies that are known to be subject to federal jurisdiction. The LA2000 database may be used to identify companies in order to create a sample.

A company may be included in the survey sample regardless of the size of the company or whether the company is unionized or not.

If a survey is being conducted as a result of a complaint investigation, the sample should include the company that is the subject of the investigation.

The prevailing industry practice of road transportation companies within a single geographical area may vary, depending upon the type of transportation services being provided. For example, moving companies may have practices regarding city drivers that differ significantly from practices prevalent among for-hire trucking companies. Therefore, if possible, include in the sample companies that are involved in similar or comparable transportation activities to that of the company that is the subject of the investigation, regardless of the product being transported.

Where a survey has been conducted for a specialized road transport sector in a geographical area, such as the moving industry, those survey results will only apply to that specialized sector.

Step 4 - Conduct Survey

The objective of the survey is to ascertain the practice used by companies to differentiate city motor vehicle operators (city drivers) from highway motor vehicle operators (highway drivers) in a geographical area.

Important Note:

It is imperative that participation of companies in the survey be on a voluntary basis. Companies may decline to participate in the survey. Under no circumstances will the inspector demand that an employer participate in a survey using their powers under section 249, except with respect to the company that is the subject of a complaint investigation. Information obtained on a voluntary basis should be treated with greater consideration to confidentiality than information obtained by use of the inspector's powers under section 249. By obtaining the information on a voluntary basis, the Labour Program is able to satisfy its obligation to share information obtained from a survey with the parties affected, and to take all reasonable caution to safeguard the confidential information provided by survey participants.

Inspectors should be watchful for other job titles that may be used for city and highway drivers. For the purposes of this IPG, city motor vehicle operators are sometimes referred to as "local drivers", "pick-up and delivery drivers", or other similar job titles. Highway motor vehicle operators are sometimes referred to as "long haul drivers", or other similar job titles.

The companies being surveyed should be initially contacted by letter to request their participation in the survey (Appendix B). The list of survey questions (Appendix B.1) should accompany the letter. The inspector will follow up by telephone to conduct the survey ten (10) working days after the letter is sent to the employer. If practicable and subject to Manager approval, the inspector may conduct the survey by in person site visits.

The inspector must ensure that survey responses are obtained from a management representative who is authorized and qualified to describe the company's practices.

Companies being surveyed should be advised that to respect their privacy, the responses of all survey participants will be compiled into an aggregate survey database. The aggregate survey database will include a list of companies who were surveyed and a list of all responses provided. To respect privacy, individual responses will not be linked to the name of the party/company who provided the response. Participants will be provided with aggregate data. Aggregate data will not be published but will be provided on request. Upon completion, the survey findings will be made public.

Upon completion of the survey, the inspector will send each survey participant a letter (Appendix C) with an attachment (Appendix C.1) on which the inspector has recorded the employer's responses to the questions.

Step 5 - Assess Survey Responses

Compile and analyze the survey responses to ascertain the prevailing industry practice that is used by companies to determine when an employee will be a city driver and when an employee will be a highway driver.

An industry practice in a geographical area will be considered to be a "prevailing industry practice" where at least 70% (4)-footnote 4 or more of the survey respondents use that practice.

In the event that there is no prevailing industry practice by at least 70% or more of the survey participants, the first portion of the definition of "city motor vehicle operator" will apply. Namely, an "… operator who operates exclusively within a 10 mile (16 km) radius of his home terminal".

  1. Prevailing Industry Practice is 10 miles (16 km) or Less

    If the survey responses show that at least 70% of companies surveyed consider an employee to be a city driver when the employee operates exclusively within an area that does not exceed a 10 mile (16 km) radius of the home terminal, this will be considered to be the prevailing industry practice. Employees will be considered city drivers when they operate exclusively within that 10 mile (16 km) radius.

    Employees will be considered highway drivers when they do not operate exclusively within a 10 mile (16 km) radius of the home terminal.

  2. Prevailing Industry Practice is Greater than 10 miles (16 km)

    If the survey responses show that at least 70% of companies surveyed consider an employee to be a city driver when the employee operates exclusively within an area that exceeds a 10 mile (16 km) radius of the home terminal, the inspector will have to ascertain the prevailing industry practice.

    This will be done by identifying the extent of the area used to define city drivers by at least 70% of companies surveyed.

    Employees will be considered city drivers when they operate exclusively within this area.

    Employees will be considered highway drivers when they do not operate exclusively within this area.

  3. Methodology for Assessing Survey Responses

    The prevailing industry practice will be ascertained by the following method:

    Compile data from Survey question #1: "What geographical area is serviced by your city drivers?" The responses to this question identify the name of the city, town, village, or township that is the furthest point served by their city drivers for each of the eight main points of the compass: Northwest, North, Northeast, East, Southeast, South, Southwest, and West.

    Using the following table, compile this data and rank the furthest points served for each compass point, in descending order, from furthest to nearest.

    1. For each city, town, village, or township identified as the furthest point served by city drivers, calculate the distance of that place from the geographical area being surveyed. Online distance calculators, such as "Google Maps © 2012 Google," may be used for this purpose. Distances are used solely for comparison and ranking purposes, so it is important to use the same method for calculating distance for all places.

    2. Insert each city, town, etc., with its distance, in the table, ranked according to distance, in descending order from furthest to nearest.

      Warning:

      This table contains wide content; Horizontal scrolling may be necessary.
      No. Northwest North Northeast East Southeast South Southwest West
      Place served km Place served km Place served km Place served km Place served km Place served km Place served km Place served km
      1.
      2.
      3.
      4.
      5.
      6.
      7.
      8.
      9.
      10.
      11.

      Add extra rows to the table if necessary.

    3. Calculate the prevailing industry practice threshold by multiplying the total number of respondents × 0.7. The sum will equal 70% of responses. This sum is the prevailing industry practice threshold. If the sum is a fraction, always round up to ensure that the threshold is always equal to or greater than 70%.

      Example:

      Total survey respondents = 11

      To obtain the prevailing industry practice threshold, calculate 70% of 11:

      11 × 0.7 = 7.7

      Round up to 8

      Prevailing industry practice threshold = 8

    4. Under each heading, count down from the response indicating the greatest distance away from the terminal by a number equal to the prevailing industry practice threshold.

      Warning:

      This table contains wide content; Horizontal scrolling may be necessary.
      No. Northwest North Northeast East Southeast South Southwest West
      Place served km Place served km Place served km Place served km Place served km Place served km Place served km Place served km
      1.
      2.
      3.
      4.
      5.
      6.
      7.
      8.
      70% Threshold
      9.
      10.
      11.
    5. The prevailing industry practice is at the 70% threshold. The survey indicates that responses 1 through 8, which represent at least 70% of the respondents, show that employees are classified as city drivers when they travel at least as far as the places identified at the threshold.

    Therefore, the prevailing industry practice will be that drivers who operate exclusively within the area bounded by the eight places identified at the 70% threshold will be considered to be city drivers. The places named will fall, in their entirety, into the "city driver area." The boundary of this "city driver area" will be further defined by a series of straight lines connecting the eight places.

    At the conclusion of the assessment the inspector will review the findings with their Technical Advisor. Once reviewed and finalized, the inspector will communicate the preliminary findings to the employer who is the subject of the investigation, and to the complainant(s) if applicable, to allow for rebuttal (Appendices Appendix-D.1 and Appendix-D.2). The inspector will include a copy of the aggregate survey data (Appendix D.3).

Step 6 - Finalize Survey

Where the employer (and/or complainant, if applicable) responds to the preliminary findings with a rebuttal, the inspector will consider any information provided and make a decision to either confirm or vary the findings. The employer (and/or complainant, if applicable) will be informed of the inspector's decision (Appendices Appendix-E.1, Appendix-E.2 and Appendix-E.3) and, if necessary, a revised copy of the aggregate survey data will be provided (Appendix D.3).

Having ascertained what the prevailing industry practice is in the geographical area, the inspector will apply the Motor Vehicle Operators Hours of Work Regulations.

Step 7 - Communicate Survey Results

The inspector must provide the survey results and the aggregate survey data in writing to:

  • the employer who is the subject of the investigation;
  • the complainant (if applicable); and
  • all employers who agreed to participate in the survey.

The employer and complainant will have been informed of the survey results and the aggregate survey data in Step 5.

If the survey results caused the inspector to issue a payment order or a notice of unfounded complaint in respect of the employer who is the subject of the investigation and the complainant, it is possible that an appeal of said order or notice may be made by the employer or the complainant.

An appeal could cause the survey results to be overturned by a referee. Therefore, survey results should not be communicated to any other parties until it is known if an appeal will be made, and if so, until the outcome of the appeal is known. If an appeal is made, the inspector will inform the Regional Technical Advisor, who will inform Workplace Directorate Labour Standards at NHQ. The appeal proceedings will be monitored to determine the effect, if any, the appeal has on the survey results.

Once it has been confirmed that no appeal has been made, or, an appeal was made but the survey results were upheld, the inspector must now communicate the survey results to all other employers who participated in the survey (Appendices Appendix-F.1, Appendix-F.2) together with the aggregate survey data (Appendix D.3).

The inspector must also take reasonable measures to make the survey results available to employers in the geographical area who were not involved in the survey, but may be affected by it. This may be done by:

  • forwarding the survey results to Workplace Directorate Labour Standards at NHQ via their Regional Technical Advisor. Labour Standards at NHQ will arrange for the survey results to be posted on the Labour Program Internet site: Survey results
  • sending a letter to the applicable provincial and/or Canadian trucking association (Appendices Appendix-G.1, Appendix-G.2); and
  • sending a letter to all federal road transport employers in the LA2000 database in that geographical area (where practicable) (Appendices Appendix-G.1, Appendix-G.2);

Brenda Baxter

Acting Director General

Workplace Directorate

Human Resources Skills Development Canada - Labour Program


Notes

[1] Commercial Vehicle Drivers Hours of Service Regulations , Section 1, Interpretation: The following definitions apply in these Regulations.

"Commercial vehicle" means a vehicle that:

  1. is operated by a motor carrier and propelled otherwise than by muscular power; and

  2. is a truck, tractor, trailer or any combination of them that has a gross vehicle weight in excess of 4,500 kg or a bus that is designed and constructed to have a designated seating capacity of more than 10 persons, including the driver.

    back-to link to note 1

[2] Commercial Vehicle Drivers Hours of Service Regulations , Section 1, Interpretation: The following definitions apply in these Regulations. "Home terminal" means the place of business of a motor carrier at which a driver ordinarily reports for work and, for the purposes of sections 80 to 82 and Schedule 2, includes a temporary work site designated by the motor carrier (Gare d'attache). back-to link to note 2

[3] Minimum survey sample size is based on Statistics Canada methodology. Reference: Wage Rate Surveys, Fair Wages and Hours of Labour Act . back-to link to note 3

[4] A prevailing industry practice may be said to exist where 51% of the respondents use that practice. However, in order to provide for a margin of error due to sample size, 70% is used to determine when a practice is prevalent as this is a common approach which is used to increase the level of confidence in the results. back-to link to note 4

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