Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 37.3 – Truck drivers


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section excludes long haul and short haul truck drivers from the overtime sections of the Act and establishes different overtime provisions for truck drivers. 


Text of Legislation

37.3. (1) Sections 35, 40 and 42 (2) of the Act do not apply to a person employed as a long haul or short haul truck driver.

(2) An employer who requires or allows a long haul truck driver to work more than 60 hours in a week must pay the employee at least 1 1/2 times the employee's regular wage for the hours worked in excess of 60 hours in a week.

(3) An employer who requires or allows a short haul truck driver to work more than 9 hours in a day or 45 hours in a week must pay the employee at least

(a) 1 1/2 times the employee's regular wage for the hours worked in excess of 9 hours in a day, and

(b) 1 1/2 times the employee's regular wage for the hours worked in excess of 45 hours in a week.

(4) An employee's time bank, as set out in section 42 (1) of the Act, must be credited at the rates required under subsection (2) or (3) of this section.

(5) For the purpose of calculating weekly overtime under subsection (3) (b), only the first 9 hours worked by an employee in each day are counted, no matter how long the employee works on any day of the week.


Policy Interpretation

Jurisdiction

This section of the Regulation applies to truck drivers who are employees of companies operating solely within British Columbia. Drivers who haul across provincial boundaries usually operate under federal jurisdiction and are not covered by provincial legislation. However, businesses that transport their own product across borders and come back to British Columbia empty are under provincial jurisdiction.

Refer also to the definition of “work” under s.1 of the Act.

Subsection (1)

Long haul and short haul truck drivers are defined in section 1 of this Regulation. Whether a truck driver is “long haul” or “short haul” is determined by reference to whether a majority of time is spent driving within or outside a 160 kilometre radius from the home terminal.

Radius” is the distance from the home terminal “as the crow flies”. It does not refer to the actual number of kilometers that a person drives on a given trip.

For purposes of the Act, a “truck” is a motor vehicle larger than a van used to transport freight. Mini-vans and pick-up trucks are not included in the definition but cube vans are. A tractor, used in combination with a trailer for hauling of freight is also considered to be a truck.

Under this section, time worked is not restricted to those hours the truck is traveling. The driver is deemed to be at work while traveling with a truck on a ferry trip that is normally of less than two (2) hour duration, or while waiting in a traffic lineup to access a sea port to pick up or off load material. The driver is also deemed to be at work while completing pre- and post-trip inspections of the truck.

This Regulation excludes long haul truck drivers and short haul truck drivers from the following overtime provisions of the Act, including the following sections:

  • Section 35 Maximum hours of work before overtime applies
  • Section 40 Overtime wages for employees not working under an averaging agreement
  • Section 42(2) Overtime wages credited to time bank

Subsection (2)

A long haul truck driver is defined in section 1 of this Regulation as one who usually drives outside a radius of 160 km from their home terminal. A long haul truck driver is entitled to overtime at the rate of one and a half times their regular rate of pay if they work more than 60 hours a week. A long haul truck driver is not entitled to daily overtime for working more than a certain number of hours in a day.

Example

A truck driver reports to a warehouse in Burnaby each day and is dispatched with goods to be delivered to Whistler, Kamloops, Kelowna and Prince George. She works 65 hours in one week. Although Whistler is not outside a radius of 160 km from the warehouse, the other destinations are.

This truck driver is a “long-haul truck driver” because she usually travels outside a radius of more than 160 km to deliver her load.

She is entitled to receive one and a half times her regular wage for the 5 hours worked over 60 in the week.

Subsection (3)

A short haul truck driver is defined in section 1 of this Regulation as one who usually drives within a radius of 160 km from their home terminal. A short haul truck driver is entitled to overtime at the rate of one and a half times their regular rate of pay if they work more than nine hours a day or 45 hours a week.

Only the first nine hours in a day count toward weekly overtime (the remaining hours are included in the daily overtime calculation).

Example

A short haul truck driver who works six 10-hour days in a week for a total of 60 hours is entitled to one hour per day of daily overtime (for hours worked over nine in a day for a total of six hours;) plus nine hours of weekly overtime for the sixth day worked, all at the rate of time-and-a-half.

 

Sunday

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

 

Hours

 

10

10

10

10

10

10

60

Regular

 

9

9

9

9

9

 

45

1 ½ x

 

1

1

1

1

1

9 weekly
+ 1 daily

15

The overtime rates established in subsections (2) and (3) also apply to truck drivers who are paid by a flat rate, piece rate or commission.

“Regular wage” is defined in s.1 of the Act.

Subsection (4)

If overtime hours are credited to a time bank, they must be credited at a rate of 1.5 times the regular wage as set out in subsection (2) or (3).

Subsection (5)

For purposes of calculating weekly overtime for short haul truck drivers, under subsection (3)(b), only the first 9 hours in a day count toward weekly overtime. (The remaining hours are included in the daily overtime calculation as set out in the chart above).

“Employee” or “Independent Contractor”?

Refer to the definition of “employee” in section 1 of the Act for general information on how to determine whether an individual is performing work as an “employee” versus an “independent contractor”.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other

See Employment Standards Factsheets

Factsheet

Truck Drivers