A Difficult Road Ahead: Transportation Industry Employers Must Navigate Imminent Changes to the Canada Labour Code

28 août 2019 | Hugh R. Dyer, Michael Cleveland

( Disponible en anglais seulement )

Introduction

Federally regulated employers in the transportation industry have reason to be concerned about upcoming changes to the Canada Labour Code (the “Code”), which will take effect on September 1, 2019. New scheduling rules threaten the efficiency, reliability and financial viability of the transportation and logistics services upon which Canadian businesses and consumers depend. The amendments also introduce a variety of leaves that are inflexible and often inconsistent with existing bargained-for leave arrangements. While there is hope that exemptions could be introduced to mitigate the impact of the amendments upon employers in the transportation industry, any such exemptions will not be implemented before the amendments come into force on September 1, 2019. This article reviews the changes that are poised to have the greatest impact on the transportation industry. For a more thorough review of the amendments, see our Labour and Employment Communique of August 21, 2019.

Changes to Scheduling Rules Threaten Efficiency and Reliability of Service

The amended Code introduces several new scheduling provisions that may strain the ability of employers to provide reliable service on tight deadlines. Of greatest concern to employers in the transportation industry are new amendments that will require employers to:

  • provide employees with their work schedules at least 96 hours before their first shift is to begin;
  • give employees 24 hours’ written notice of an employee’s shift change;
  • provide employees with a period of at least eight consecutive hours between shifts;
  • allow employees to refuse overtime in order to fulfil a family responsibility; and
  • permit employees to take an unpaid break of 30 minutes during each period of five consecutive hours of work.

The every-day functioning of Canada’s supply chains depends upon predictability and flexibility. But starting in September, if a vehicle operator calls in sick, replacement employees will be entitled to decline shifts if not notified 24 hours in advance. This could severely hamper the ability of transportation employers to meet delivery deadlines. Moreover, delays caused by an employee’s refusal to work overtime could have repercussions elsewhere in the transportation network, causing reductions in overall efficiency and impacting the broader economy through delays and increased costs.

The legislation does permit exceptions to notice and break entitlements where the need is not reasonably foreseeable and it is necessary to deal with an “imminent or serious” threat to life, health, safety of a person, threat of damage or loss of property, or serious interference with the “ordinary working of the employer’s industrial establishment.” To rely on this exception, transportation industry employers would constantly bear the burden of establishing that a variation in a schedule was akin to an emergency situation. This is not a viable state of affairs. A modification of these rules on a sector-wide basis is needed to account for the realities of the industry.

Moreover, it appears to be the case that the new amendments are inconsistent with established regulations governing hours of service in the transportation industry, such as the Commercial Vehicle Drivers Hours of Service Regulations (SOR/2005-313). That regulation enumerates several situations in which a commercial driver is not required to have eight consecutive hours of off-duty time in a day. Yet, with the coming into force of the Code amendments, it would appear that an employer who complies with regulations under the Motor Vehicle Transport Act would nevertheless be in violation of the Code. It is apparent that more communication between stakeholders and government—and between various government departments—is required in order to address these inconsistencies.

Changes to Leave Entitlements Are Ill-Suited to the Transportation Industry

Amendments to the Code will also create a host of new leave entitlements and modify existing ones. When leave provisions are appropriately tailored to the realities of business in a given industry, they can help promote healthy working conditions for Canadian workers. But when—as seems to be the case here—they are inflexible and harm the ability of the transportation industry to operate effectively, more consultation with stakeholders is needed.

The introduction of a “personal leave” and modifications to the “medical leave” provisions of the Code are the most impactful changes for transportation industry employers. Personal leave will entitle employees to take up to five days of leave per year (three days paid) for illness and other prescribed activities, such as “addressing any urgent matter concerning themselves or their family members.” Medical leave will provide for leave during working hours to attend, among other things, medical appointments. The unpredictability that these leaves create has the potential to markedly disrupt operations in the industry and are largely unnecessary where bargained-for leaves exist that are better tailored to the realities of the industry.

Exemptions on the Horizon?

While the government has already announced amendments to the current Code regulations to bring them in line with the new Code provisions, the development of additional regulations is an ongoing process. In June 2019, Employment and Social Development Canada (ESDC) sought input from stakeholders as to the development of regulations for the new Code amendments. It remains to be seen whether forthcoming regulations will provide any sectoral exemptions to soften the blow that the amendments are slated to impose upon employers in the transportation industry.

Conclusion

There is no doubt that the primary objective of the Code amendments—developing legislation to address the needs of modern workplaces—is a commendable goal. However, transportation industry employers face unique challenges and, at the moment, it appears that their concerns have not been taken into consideration.

Given the sweeping changes that will shortly impact all federally regulated employers, we encourage you to contact a member of our team if you or your organization has any questions about these new statutory obligations. We will continue to monitor and provide updates on developments in this area as they are announced.

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