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Implications of Recent Class 5 Driver's License Arbitration

The Decision

A decision was rendered regarding a sectoral policy grievance filed by the Community Social Services Bargaining Association (CSSBA) on June 12, 2017. The policy grievance claimed that employers must pay the renewal fees for Class 5 driver’s licences ($75 every five years) for employees who are required to drive their own vehicles as part of their jobs or who are required to confirm that they hold a valid Class 5 driver’s licence as a job requirement. In his decision released September 13, 2017, Arbitrator Robert Pekeles ruled in favour of the CSSBA.

Arguments Presented

The CSSBA argued that employers must reimburse employees for the Class 5 licence in the same way that they must reimburse employees for the cost of renewing a Class 4 licence, as determined in an April 12, 2012 arbitration award issued by Arbitrator Vince Ready. It further argued that the obligation on employers to pay for licences that they require employees to possess is clearly set out in Article 28.12 – Required Certificates, under the Collective Agreements.

CSSEA argued that the Class 4 licence award does not apply in this case and further, that there was no clear agreement reached by the parties under the language of Article 28.12 leading to a conclusion that employers would pay for the cost of renewing Class 5 licences. Given that the provision was not clear, other evidence of the parties’ practice should be used to assist the arbitrator in determining that they never intended the Class 5 licence fees to be payable by employers. CSSEA’s evidence and key arguments can be summarized in the following:

  1. On the basis of agreed facts, employers may require employees to provide confirmation that they hold a valid licence or use their own motor vehicle for business use. On this basis, CSSEA argued that employers do not require employees to hold class 5 licences; the requirement is established by government under the Motor Vehicle Act, when a person wishes to drive legally in BC. In contrast, the 2012 Ready Award stated that employers may require employees to hold a Class 4 licence as a qualification rather than to simply provide proof that they are holding a valid licence under the Act.
  2. The language of Article 28.12 does not clearly support that the employer would pay for this licence. In this case, the genesis of Article 28.12 was not directly negotiated by the parties; it was recommended by Don Munroe in mediation in 1999 and was framed in the context of acquiring first aid certificates and licences, not driver’s licences. There was no evidence that Mr. Munroe or the parties would have agreed that employers would pay for a predominantly personal use Class 5 driver’s licence. It was only until the Ready arbitration in 2012 that the interpretation of Article 28.12 was expanded to cover the payment for Class 4 licences. Given this ambiguity, CSSEA expected the arbitrator to look at the parties’ existing practices since 1999 to determine their mutual intention.
  3. CSSEA members’ practices since 1999 were clear. Based on a survey of the membership conducted before the arbitration, there was an overwhelming practice of employers not paying for the class 5 license. Out of 90 members who responded to the survey, only two at some point in time paid for the class 5 licence and no member currently paid for it.
  4. On the union side, there was evidence indicating knowledge of the employer practice of not paying for Class 5 driver’s licenses and acquiescence to it, yet the only grievances filed were in relation to the Class 4 licence requirement in 2011. No grievance was filed about non-payment of the Class 5 licence until 2015.
  5. On the basis of employer practice and union acquiescence, the requirements of the Motor Vehicle Act, and the ambiguity of Article 28.12, CSSEA argued there was no basis for finding a mutual intention that employers should pay for the Class 5 licence renewal.

Implementation of Decision
CSSEA is currently reviewing the Award to determine whether to file an appeal with the Labour Relations Board. In the meantime, the decision is binding on all employers covered by the three Collective Agreements and is considered effective June 12, 2017 for all employers in the sector, except for two employers where grievances were filed. Employers should note that because the initial grievance was filed in 2015, the implementation date could have been retroactive to 2015 but CSSEA successfully negotiated a 2017 implementation with the CSSBA. As a result, employees who are required to hold a Class 5 licence for employer business purposes and who renew their licences on or after June 12, 2017 are to be reimbursed for the cost of the licence.

Pending the outcome of any appeal, employers must implement the Award and should note that payment of the Class 5 driver’s license is a taxable benefit to be reported on T4 tax slip boxes 14 and 40. We understand that this is an additional cost and advise employers to consider strategies to limit financial exposure, such as reconsidering whether as many employees need to drive their personal vehicles to deliver services and whether driving responsibilities can be redistributed or limited. If employees are not required to drive a vehicle for work purposes, job descriptions will need to be revised.

CSSEA has alerted funders about the additional financial impact of this Award on the sector. We will also be discussing inclusion of possible language changes to Article 28.12 with the 2019 Bargaining Committee.

The full version of the award is attached and posted on the CSSEA’s website under Resources/Members Home/Legal/Arbitration. Should you have any questions about the application of this Award, please contact your HRLR Consultant.

Communications Contact

Doris Sun
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