VANCOUVER, B.C. — A group of trucking companies is taking the federal government and Port Metro Vancouver to court.
The 33 businesses have filed a notice of civil claim in the Supreme Court of British Columbia. According to the lawyer representing them, Israel Chafetz of the Vancouver-based law firm Taylor Jordan Chafetz, the legal action is a direct result of the federal government’s involvement in settling the strike and work stoppage at the port earlier this year.
“The government went ahead and made a deal with [Unifor and the United Truckers’ Association (UTA)] at the exclusion of the people who pay the bills. And then they all declared some great compromise,” said Chafetz explaining that the federal and provincial governments only negotiated with the representatives of the drivers and not with the trucking companies while developing the 14-point Action Plan that resulted drivers returning to work.
“When one party to the trucking contract is excluded from the room, it’s pretty easy to make a deal. The people paying the bill weren’t there.”
Not only do the 33 trucking companies object to being excluded from the negotiations, they feel the government didn’t have jurisdiction to be involved in the first place.
“What the federal government is doing is imposing rates on a provincially regulated trucking business,” Chafetz said. He noted the fact that the provincial government was involved in the negotiations “doesn’t change a thing” with regards to the claims of the suit.
As for the port, Chafetz said Port Metro Vancouver is also wrong in its actions.
“They used that deal that the government has and they are now in the process of imposing those terms as a condition of licensing. So in effect, cutting out the people who have to be responsible for paying for these things.”
In the 22-page claim filed with the court, the trucking companies cite a number of legal reasons for their belief the government and the port acted incorrectly. In particular they mention Sections 91 and 92 of the 1867 Constitution Act and Section 52 of the 1982 Constitution Act. They argue that “the legislative jurisdiction on Parliament does not extend to regulating the labour relations of the Plaintiffs as provincially regulated entities, nor may Parliament prescribe minimum remuneration that the Plaintiff must pay the owner-operator with whom they directly contracted with or the provincially regulated owner-operator bargaining units represented by Unifor-Vancouver, including the MOA Load Rates and the terms set out in the Operations Regulation as amended from time to time.”
They also feel a certain section of the Operations Regulation was ultra vires [outside of legal jurisdiction] and as a result Port Metro Vancouver “had no authority to impose upon the Plaintiffs the requirement to pay owner-operators they contracted with or the provincially regulated owner-operator bargaining units represented by Unifor-Vancouver the MOA Load Rates as a condition to obtain licences to access the ports.”
In addition to damages and interest, Chafetz said his clients are hoping the court sets aside the per-container fee increases as a condition of licensing. The suit also asks the court to declare the government’s actions outside of the legal jurisdiction granted to it under the Constitution.
Chafetz said that rather than negotiate with the federal and provincial governments, Unifor and the UTA should have dealt directly with the trucking companies.
On the union side, Gavin McGarrigle, B.C. area director for Unifor, said the fact the trucking companies wouldn’t negotiate—the union was without a collective agreement for nearly two years—meant the only people left to deal with were the government representatives. He also expressed his feelings about the civil suit.
“I think these trucking companies should be ashamed of themselves. It just proves once again, what we were saying during the dispute: these trucking companies don’t have any accountability to anyone. They want their right to undercut and drive rates into the ground to take precedence over everyone else. It seems that the trucking companies prefer chaos to stability.
“At the end of the day, we reached an agreement with both levels of government, so I’m not even sure where they are trying to go with this. We reached agreement with both levels of government precisely because of the failure of the trucking companies to come together as a cohesive group and sit down and bargain together an industry-wide agreement. Both levels of government ultimately stepped up and showed leadership on the issue, and here you have the trucking companies saying they don’t want to play ball, they want to try to use legal manoeuvres to get out of paying reasonable rates. It’s disgraceful. It’s absolutely shameful.”
Louise Yako, president and CEO of the B.C. Trucking Association (BCTA) said the organization doesn’t have an official position on the lawsuit, but understands how it resulted.
“Whenever you have this kind of situation that is resolved by parties who are not actual participants, it’s very difficult to come to a satisfactory ending. To the extent these trucking companies want to make known their dissatisfaction, this is a method they have chosen,” she said.
“In this case, there is no roadmap. That’s the difficulty of the situation. There are questions about jurisdiction and there are multiple stakeholders. It’s not clear who really should be participating.
“The initial dissatisfaction that was expressed by the drivers was all based around wait-times and turn-times at the terminals, and there is no direct relationship between the owner-operators and the terminals. There is no direct relationship between the trucking companies who contract the owner operators and the terminals. That’s what makes this whole situation so difficult. There is a great deal of empathy for the drivers’ situation—nobody thinks it’s fair that they be sitting around waiting—and the way in which they are compensated doesn’t address that wait-time issue for the most part. Although, there are some trucking companies that recognize that and have set up compensation terms to address that, but no-one talks to those trucking companies, because they don’t have a problem with their owner operators.”
She said that although the port experienced a strike in 2005—a strike which also caused the federal government to become involved—this year’s labour unrest is different because it affected more than just the truckers.
“There is a greater recognition of what is at stake and there is more at stake this time because export volumes have grown considerably since 2005, and they are projected to continue to grow. The federal government, the provincial governments and private industry have invested a great deal of money in improving the infrastructure to facilitate the movement of cargo,” Yako said.
“What we are talking about now is we are talking about the processes of the supply chain, which means essentially co-ordinating that activities of thousands of importers and exporters and trucking companies and reload facilities and transload facilities, terminals—all of those individual groups and companies need to be co-ordinated in order to make this gateway work. That’s going to be a real challenge.”
Yacko said the industry needs to work together to ensure the “spirit of the Action Plan” is met, and that “not all of the negative consequences of growth fall onto one group. We need to figure out a way to grow more gracefully than we have been.”
The odds, however, of that happening are fairly remote. Not only is the lawsuit by the truckers
progressing, Unifor’s McGarrigle said there has been another one launched as well.
“The terminal operators have now filed for a judicial review—with Mr. Chafetz representing them again—of the port’s decision to charge them a fee for waiting times. We’ve been informed that TSI and DP World, have both filed for a judicial review.
“That’s what I mean. The trucking companies are saying ‘we don’t want to play ball. We don’t want to pay minimum rates.’ You’ve got the terminal operators saying ‘We don’t want to pay waiting time fees.’ The question is what the Hell do they want? Do they want this industry to completely collapse? Don’t they have any sense of social responsibility to anybody else out there who rely on a safe and stable and efficient port?
“At the end of the day, we have to get on with it. This is a very important port. There are lots of people who rely on it, not the least of which are our members,” he said.
McGarrigle also explained that there is no love lost between the union and the BCTA.
“The BCTA is a destructive, destabilizing force in the industry and you and quote me on that. They have done everything possible to represent the interest of trucking owners. They issue the port passes to trucking companies. Both ourselves and the UTA have said that is inherently a conflict. They shouldn’t be releasing the port passes. They shouldn’t have that opportunity,” he said.
McGarrigle also commented that during the strike, the BCTA “tried to come out with their own plan that didn’t involve any consultation with representatives of truckers at all. They put this out there as the solution to the dispute. It strikes me as very ironic that here they were fully prepared to move forward with what they believe would put an end to the dispute with no consultation with the trucking workers representatives.”
When asked how he would like to see the situation at the port improve, McGarrigle expressed the union’s wish for the trucking companies, terminal operators, and other involved parties to come together and form a certified bargaining association so that his members can negotiate with one single force that represents the industry as a whole.
Until that happens, he said truckers will continue to work with the federal and provincial governments under guidelines of the Action Plan, a process that seems to be working so far.
“We would obviously prefer the pace to be faster, and there are some frustrating moments, but overall we think they are moving forward in good faith. We are working our way through the issues, and we certainly see a level of commitment there from both levels of government to the plan. “
Yacko said the BCTA is also involved in the process established by the Joint Action Plan.
“We have completed Phase I of the consultation the port undertook to talk to industry about changes to the truck licence system. We have scheduled two follow-up consultation sessions, what they are calling Phase II. That will take place in the next couple of weeks. According to the Joint Action Plan, the reform will be completed by June 15. Now whether they are actually able to meet that June 15th deadline or whether that slips by a couple of days, I don’t know, but it will obviously be very, very tight. I know there are discussions taking place on the extended gates and how the extended gates would work. “
At this point, the only solid, concrete result to come out of the Joint Action Plan process has been the Technical Clarifications issued to ensure all parties understand their obligations.
For example, it states, that in order to ensure the drayage sector is stabilized through the consistent application of one of the two rate floors, “employees and owner operators, both union and non-union, must be paid either hourly or trip rates (they cannot be compensated using a combination of methods).” It mandates the hourly rate to be a minimum of “$25.13 on hire and $26.28 after one year of service for company employees,” and that trip rates must be applied “to each leg of a trip for all full and empty container. These rates shall be calculated on a round trip basis, and shall apply to all move.”
It also reminds readers the fuel surcharge multiplier in the formula has “doubled to 2% from 1% which for this quarter of 2014 is calculated to be 16%.”
The complete list of trucking companies listed as plaintiffs in the suit follows below.