Effective November 30, 2002, the Provincial Government has brought some reform to the Employment Standards Act. There continue to be a number of special regulations unique to the forest and transportation industries. The purpose of this article is to provide a guide to employers and employees. These rules and regulations are quite intricate, and this article may be regarded as a summary of the more basic requirements.

I want to preface my comments by saying that the Employment Standards Act applies only to employees and not to independent contractors. As a general rule, lease operators who supply their own trucks, and logging subcontractors who provide their own equipment, are considered independent contractors. It is the view of the Employment Standards Branch, however, that a situation may exist where a person who owns and supplies one high-ticket piece of equipment to one party is, in fact, considered an employee. I would think that such occasions would be rare, though.

The Employment Standards Act does not govern an independent contractor relationship. Independent contractors may strike whatever deal they wish. That deal usually does not provide for payment for overtime, statutory holidays, or annual vacation, although it is certainly open to the parties to negotiate for that.

Statutory Holidays and Annual Vacation

When it comes to statutory holidays and annual vacation, there are no special rules for truckers or loggers. Every employee is entitled to be paid for these, including the logging and highway truck drivers who work on a percentage-of-gross or by-the-mile basis. So, in a two-week pay period containing a statutory holiday, a driver working on a percentage-of-gross basis or by-the-mile basis will get paid additional money for that statutory holiday that he or she did not work. The same comment applies to paid annual vacation, although some employers deal with that simply by adding 4% to each paycheque.

Overtime – The General Rule

The general rule for all employees in British Columbia is that they are entitled to overtime at the rate of one and a half times their wages after they have worked eight hours in a day or forty hours in week. Double time applies after twelve hours in a day.

There are new provisions to the Employment Standards Act that allow an employer and employee to enter into a written “averaging agreement”. So, for example, an employer and employee may agree to a four-day work week of ten hours per day without paying daily overtime. The requirements and the opportunities for an averaging agreement may be found at Section 37 of the Employment Standards Amendment Act, 2002, which may be found at the Employment Standards Branch’s website.

Interior Loggers

Employees of Interior loggers are entitled to the usual overtime pay. A special provision exists in the regulations, though, which provides that if an employer has scheduled at least one hour overtime per employee on each of the previous five days of that week, and if the majority of employees agree in writing, up to eight hours may be worked at regular wage on the sixth day of work (but an employer must pay one and a half times the regular rate for all hours worked on the seventh day). If the majority of employees do not agree in writing, the usual overtime provisions apply, i.e. time-and-a-half. There are indications that this special provision might be repealed in the next round of regulation cuts.

Short-Haul Truck Drivers

Short-haul truck drivers are those who usually stay within 160 kilometres of their home terminal. Special overtime rules apply to short-haul truck drivers. They are to be paid time-and-a-half after 9 hours in a day or 45 hours in a week. Significantly, the usual overtime rules apply even if they are percentage-of-gross drivers. So, if a driver works ten hours in a day, and on a straight percentage-of-gross basis he would get paid $100, in fact he should receive more because of the one hour of overtime that he drove that day. The Employment Standard Branch’s website sets out a methodology for calculating this.

Long-Haul Truck Drivers

These are truck drivers who usually drive beyond a 160 kilometre radius of their home terminal. Special rules apply to long haul drivers: they are not entitled to any daily overtime, and are entitled to time-and-a-half after sixty hours in a week. Drivers working on a percentage-of-gross or by-the-mile basis are also entitled to be paid overtime. So, if a driver actually drives seventy hours in a week, and if he would ordinarily be entitled to be paid $1000 on the percentage or per-mile basis, then he should actually receive more than that amount, because of his overtime. Again, see the Employment Standards’ website for the methodology of calculating this additional amount.

Interior Log Truck Drivers

Interior log truck drivers can be put into two categories: those working on an hourly rate basis, and those working on an other-than-hourly-rate basis. For those who work on an hourly rate basis, see the comments above about short-haul and long-haul truck drivers. For those who work on an other-than-hourly-rate basis, for example a percentage-of-gross or by-the-mile basis, there are no provisions for paying overtime to Interior log truck drivers.

The Federal Law

Everything mentioned above in this article is in reference to the British Columbia Employment Standards Act, and applies to employees who do not leave the jurisdiction. Those employees who travel to other provinces or to the United States are instead governed by the Canada Labour Code. And, special Labour Code provisions apply to long-haul truck and bus drivers. Standard hours for that class of employee are sixty hours in a week (fifty hours if a statutory holiday occurs that week). Excess hours entitle the employee to time-and-a-half. There are no provisions for daily overtime. Presumably this applies, as well, to those long-haul drivers working on a non-hourly basis, in the same way that the Provincial legislation applies.

In my experience, many employers who pay their drivers on a percentage-of-gross or by-the-mile basis are ignoring their obligations to calculate and pay overtime, and to pay for statutory holidays and annual vacation. Beware of the pitfalls of this. There are now mandatory penalties to be imposed for non-compliance with the B.C. Employment Standards Act: $500 for the first offence; $2,500 for the second offence; and $10,000 for any subsequent offences. Also, a disgruntled former-employee can attend at the Employment Standards Branch and have that branch pursue for him, entirely without charge or obligation, a claim for unpaid overtime, unpaid statutory holidays, and unpaid annual vacation, going back for six months (this is a recent change – it used to be two years). This has the potential of being a real blow to an employer’s pocket book.

John Drayton is a Kamloops lawyer practicing in the areas of motor transport and forestry law.