Survey procedure for confirming a prevailing industry practice in a geographical area: Motor vehicle operators hours of work regulations - IPG-071

Effective Date: December 20, 2006

Revised date: February 14, 2023

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• Subject
• Issue
• Definitions
• Procedures
  • When to conduct a survey
  • Survey procedures

Subject

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

Note: “employees” also includes interns. Student interns are not subject to the interpretation of this IPG.

Issue

Employers must pay their employees 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

It is important to establish the occupational classification of the employee, as there is a significant difference in standard hours between city and highway motor vehicle operators.

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

• the motor vehicle operator operates exclusively within a 10 mile (16 km) radius of their home terminal
• the motor vehicle operator is not a bus operator
• the motor vehicle operator is classified as a city motor vehicle operator in a collective agreement
• 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

The MVOHWR always considers an employee (excluding bus operators) a city motor vehicle operator when the employee:

• operates exclusively within a 10 mile (16 km) radius of the employee's home terminal, and
• classifies as such under a collective agreement

For cases that do not meet these criteria, it will be necessary to confirm 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.

Definitions

Bus: is designed and constructed to have a designated seating capacity of more than 10 persons. The MVOHWR does not define the term "bus". 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.^{Footnote 1}

Bus operator: a motor vehicle operator who operates a bus.

City motor vehicle operator: a motor vehicle operator who:

• operates exclusively* within a 10 mile (16 km) radius of their home terminal
• is not a bus operator
• is classified as a city motor vehicle operator in a collective agreement entered into between their employer and a trade union acting on their behalf, or
• is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed

*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.

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

Home terminal: the place of business of a motor carrier at which a driver ordinarily reports for work". The MVOHWR does not define the term "home terminal". For the purposes of this IPG, the definition of a "home terminal" contained in the Commercial Vehicle Drivers Hours of Service Regulations^{Footnote 2} is used.

Motor vehicle: any vehicle that is operated by an employee and is propelled otherwise than by muscular power. Does not include any vehicle designed for running on rails.

Motor vehicle operator: a person who operates a motor vehicle.

Shunter: 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. A shunter is to be paid overtime pay after the standard of 8 hours per day and 40 hours per week.

Standard hours of work: 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 9 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: all hours from the time that a motor vehicle operator begins their work shift as required by their employer until the time he is relieved of their job responsibilities but does not include any time:

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

Procedures

When to conduct a survey

A survey is conducted only when it is necessary to determine the occupational classification of an employee as being either a:

• city motor vehicle operator, or
• highway motor vehicle operator

In order to determine the applicable standard hours for an employee, one must establish which element of the city motor vehicle operator definition applies. If the "prevailing industry practice" element applies, a survey of federal jurisdiction trucking companies in that geographical area must be conducted. This is to confirm the prevailing industry practice.

The local industry practice is determined by employers in the trucking industry. However, the Labour Program conducts the survey to confirm the prevailing industry practice.

Survey procedures

The following procedures must be adhered to when conducting a survey to ensure the consistent application of section 2 of the MVOHWR.

Step 1: Determine geographical area

Identify the geographical area for the purpose of the survey.

Identify the geographical area by using the economic regions established by Statistics Canada. 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.

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, it should be determined whether the Labour Program has conducted a survey for this area within the past 5 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, notification will be provided to the Canadian Trucking Alliance, and any applicable provincial trucking association, to inform the road transport industry associations that a survey is being conducted.

Step 3: Determine survey sample

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

Sample size may vary depending on the size of the geographical area and the number of transportation companies in that area.

The minimum sample size for the survey is 6. This is necessary to ensure the confidentiality of survey respondents^{Footnote 3}. Where a minimum sample of 6 companies cannot be met, the geographical area should be increased 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. It should also 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.

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. It depends upon the type of transportation services that area provides. For example, moving companies may have practices regarding city drivers that differ significantly from practices prevalent among for-hire trucking companies. Therefore, if possible, the sample will include 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, the survey results will only apply to that specialized sector.

Step 4: Conduct survey

The objective of the survey is to confirm 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 companies participate in the survey on a voluntary basis. Companies may decline to participate in the survey. This, however, does not apply 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. 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. The Labour Program can also take all reasonable caution to safeguard the confidential information provided by survey participants.

The trucking industry may use other job titles for city and highway drivers. For the purposes of this IPG, city motor vehicle operators are sometimes referred to as:

• “city drivers”
• "local drivers"
• "pick-up and delivery drivers", or
• other similar job titles

Highway motor vehicle operators are sometimes referred to as:

• “highway drivers”
• "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, accompanied by a list of survey questions. A follow up will be done by telephone to conduct the survey 10 working days after the letter is sent to the employer. If practicable, the survey may be conducted by in person site visits.

Survey responses must be obtained from a management representative who is authorized and qualified to describe the company's practices.

Companies being surveyed should be advised that the responses of all survey participants will be compiled into an aggregate survey database. This is to respect their privacy. The aggregate survey database will include a list of companies who were surveyed and a list of all responses provided.

To respect privacy, the database will not link individual responses 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.

Once the survey is complete, each survey participant will receive a letter, including an attachment which will have a compilation of the employer's responses.

Step 5: Assess survey responses

The survey responses will be compiled and analyzed to confirm the prevailing industry practice that is used by companies. This is 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%^{Footnote 4} or more of the survey respondents use that practice.

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.

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 prevailing industry practice will have to be confirmed.

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
• highway drivers when they do not operate exclusively within this area

Methodology for assessing survey responses

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

Compiling data from Survey question no 1: "What geographical area is serviced by your city drivers?" The responses to this question will identify the name of the city, town, village, or township that is the furthest point served by their city drivers for each of the 8 main points of the compass:

• Northwest
• North
• Northeast
• East
• Southeast
• South
• Southwest, and
• West

At the end of the assessment, the preliminary findings will be communicated to the employer who is the subject of the investigation, and to the complainant(s) if applicable, to allow for rebuttal. A copy of the aggregate survey data will be included.

Step 6: Finalize survey

If the employer and/or complainant (if applicable) responds to the preliminary findings with a rebuttal, any information provided will be considered. A decision will be made to either confirm or vary the findings. The employer and/or complainant (if applicable) will be informed of the decision. If necessary, a revised copy of the aggregate survey data will be provided.

Having confirmed what the prevailing industry practice is in the geographical area, the Motor Vehicle Operators Hours of Work Regulations will be applied.

Step 7: Communicate survey results

The survey results and the aggregate survey data will be provided in writing to:

• the employer who is the subject of the investigation
• the complainant (if applicable)
• 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.

The survey results will also be communicated to all other employers who participated in the survey together with the aggregate survey data.

The survey results may affect employers in the geographical area who were not involved in the survey. Therefore, reasonable measures will be taken to make the survey results available to these employers. This will be done by:

• posting the survey results on the Labour Program Internet site: Survey results
• sending a letter to the applicable provincial and/or Canadian trucking association
• sending a letter to all federal road transport employers in that geographical area (where practicable)

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