The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before the panel is whether or not the worker is considered an apprentice under section 45(3) of The Workers Compensation Act (the “Act”). Section 45(3) provides as follows:

Adjustment of earning capacity

45(3) Where the board is satisfied that a worker’s average earnings before the accident do not fairly represent his or her earning capacity because the worker was an apprentice in a trade or occupation, the board may adjust wage loss benefits from time to time by deeming the worker’s average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker in the trade or occupation.

If we find that the worker was an apprentice at the time of the accident, the WCB will, pursuant to section 45(3), periodically adjust his average earnings in accordance with the established wage he would have earned as an ironworker apprentice, upwards until his average earnings reach the prevailing wage of a journeyman.

The Policy provides direction as to when a worker may be found to be an apprentice and states:

1. Eligibility under the policy is subject to the following definitions:

(a)

i. “Apprentice” in a trade means an apprentice as defined under the terms and conditions in The Apprenticeship & Trades Qualifications Act (i.e., unless the person is declared an apprentice in a designated trade under The Apprenticeship & Trades Qualifications Act, the person is not an apprentice for the purposes of this policy).

ii. “Apprentice” in an occupation means a worker who in all circumstances must complete an “apprenticeship” in order to obtain the licence or professional designation required to work in the occupation. Whether by legislation or the canons/by-laws of a self-governing body, the rules and regulations for the “apprenticeship” must be defined in a similarly strict manner as those contained in the legislation for an apprentice in a trade.

iii. “Apprentice” in an occupation also means a worker who participates in a structured, employer-financed training program in order to work in the occupation.

The Worker’s Position

The worker was represented by legal counsel at the oral hearing. The written submission contained three main arguments regarding the worker’s apprenticeship status:

1. The worker is an “apprentice in a trade” under the Policy. The Policy does not require a formally registered apprenticeship agreement in order for the worker to be an apprentice.

2. In the alternative, the worker is an “apprentice in an occupation” under the Policy.

3. The worker is an apprentice under the terms of the Act which recognizes implied and oral apprenticeship contracts as well as express and written apprenticeship contracts. To the extent that the Policy requires a formal, registered apprenticeship agreement in order for a worker to be recognized as an apprentice, the Policy is narrower than the scope of the Act. In the circumstances, the panel should be bound by the terms of the Act and the real merits and justice of the case.

Evidence at the Hearing

At the hearing, the worker and a co-worker testified as to the worker’s intention to become an apprentice ironworker. The panel heard evidence about how the worker changed from a non-unionized employer to a unionized employer and in so doing, suffered a short-term decrease in pay, just so that he would be able to become an apprentice and be capable of earning greater income in the long run. A principal officer from the employer was also present at the oral hearing and confirmed that in his view, he considered the worker to be an apprentice.

The panel also heard evidence from the union representative who gave evidence regarding the registration practices of the union and the processes which were followed. The union representative also gave useful background history regarding the availability of ironworkers during the relevant period of time, and indicated that due to the high demand for labour, at that time there were many workers who delayed in becoming registered with the union and were dispatched on temporary permits. Many of these individuals subsequently became formally registered as apprentices, but may have delayed by over one year before becoming registered.

Although there appears to be consensus between the worker, his union and the employer that the worker was considered by all to be an apprentice, the Appeal Commission and its panels are required by the Act to apply the policies of the WCB. Section 60.8(6) specifically provides that: “The appeal commission is bound by the policies of the Board of Directors.” Thus, despite the apparent consensus about the worker’s status as an apprentice, we are bound to interpret and apply the Policy.

Analysis

In the opinion of the panel, the proper section under which to consider the worker’s eligibility as an apprentice is section 1(a)(i) of the Policy. The worker was employed as an ironworker, which is a designated trade under The Apprenticeship & Trades Qualifications Act (“ATQA”). As the trade of ironworker is a designated trade, we do not think that the Policy provisions dealing with apprentices “in an occupation” are applicable to the worker. Even if the “occupation” sections were applicable, it is our opinion that the facts of this case would not support the finding of “defined rules and regulations”, or a “structured employer-financed training program” sufficient to consider the worker an apprentice under either section 1(a)(ii) or 1(a)(iii) of the Policy.

As outlined earlier, section 1(a)(i) of the Policy provides as follows:

“Apprentice” in a trade means an apprentice as defined under the terms and conditions in The Apprenticeship & Trades Qualifications Act (i.e., unless the person is declared an apprentice in a designated trade under The Apprenticeship & Trades Qualifications Act, the person is not an apprentice for the purposes of this policy).

We note that the bold emphasis in the wording is original to the Policy.

At the outset, we make two observations regarding the wording of section 1(a)(i) of the Policy. First is that the meaning of the term “apprentice” is defined with reference to the terms and conditions of the AQTA. We think it noteworthy that the Policy does not simply adopt the definition of “apprentice” as provided in the AQTA, but rather incorporates how the term is defined under the terms and conditions of the AQTA.

The second is that section 1(a)(i) provides clarification by stating that a person is not an apprentice for the purposes of the Policy: “…unless the person is declared an apprentice in a designated trade” (emphasis added). In our view, keeping the two observations in mind, the key to interpretation of the Policy is whether the worker can be “declared” an apprentice pursuant to the “terms and conditions” of the AQTA.

The worker’s legal counsel advanced the argument that the AQTA contemplates three ways in which an individual may be able to achieve journeyman status. First is the traditional method, which involves entering into a written apprenticeship agreement which is then registered with the department. The worker then accumulates hours and takes the requisite schooling in order to move up the apprenticeship levels to ultimately become a journeyman. This was termed a “formal apprenticeship”.

It was then argued that the AQTA also contemplates an “informal apprenticeship agreement”, whereby a worker could rely upon past work experience to become qualified and upon writing a challenge exam, could become a journeyman based on that past experience. It was also noted that there is no timeline in the ATQA for registering an apprenticeship agreement in a non-compulsory certification trade, such as ironworking. Thus, it was argued, the AQTA implicitly permits an apprenticeship agreement in a non-compulsory certification trade to be registered later than the date the agreement is formed and until such time as the written agreement is registered with the department, there is an “informal apprenticeship agreement”.

The third way that an individual may become certified is a combination of the formal and informal methods, whereby a worker’s previous hours would be credited to advance the worker to an intermediate level of apprenticeship, and then the balance of the apprenticeship would be completed under a formal registered apprenticeship agreement.

While this argument was compelling, the panel had difficulty reconciling the argument with the facts of the case. First, the panel had difficulty conceptualizing who the parties to the informal apprenticeship agreement would be. Under the formal apprenticeship agreement, the Union is in the position of employer. The evidence given by the Union representative at the hearing was that to become an apprentice with the Union, a worker would come to the Union Hall and would first fill out an application to become a member of the Union. The Union would then have the worker sign an apprenticeship agreement between the Union, the worker and the Apprenticeship Branch. Under the apprenticeship agreement, the union acts as the employer. The reason is because the expectation was that the worker would be with the Union for a long time, but they could be working for many different contractors during the course of the year and it would be hard to monitor if a new agreement had to be signed each time the worker was dispatched to a new job or project. As a worker gained experience, the Union, as employer, would keep track of the hours worked and schooling requirements and advise apprentices when they would be eligible to apply to move up a level.

Under an informal apprenticeship agreement, it would not be possible for the union to be the employer. The evidence of the union representative was that they wanted all of their members to be signed into the apprenticeship program, and failure to participate in the schooling could, and in a few cases, did result in expulsion from the union. Thus it would appear that there was no intention on the part of the union to enter into informal apprenticeship agreements where a worker could become qualified as a journeyman based on credited experience alone.

More important, however, was the evidence given by the worker at the hearing regarding his communications with the Union. In the panel’s opinion, there was little in the way of a meeting of minds regarding apprenticeship sufficient to form a contract between the worker and the union. The worker secured his position with the employer through direct connections with the employer. The Union was not involved in either recruiting the worker, nor dispatching him to the employer. Once the worker agreed to work for the employer, the Union was informed of the worker’s employment and added the worker to their records. While the worker was aware in general terms that there was a Union and that he would be required to log a certain number of hours and take some schooling, he admits that he did not know much about the schooling requirements. All he had was general knowledge that most trades require some schooling. Indeed, at the relevant time, the worker had minimal direct personal contact with the Union. He testified that the Union representative had attended at the job site to speak with the employees collectively and that he had made a telephone call to the Union office, but that was the extent of his involvement with the Union. Overall, almost no information regarding the requirements for apprenticeship had been exchanged between the Union and the worker. It would be difficult to impute that there was an unwritten agreement in place between the worker and the Union.

The panel considered the possibility that the worker’s actual employer would be a party to the informal apprenticeship agreement. However, on the facts of this case, the employer was a signatory contractor with the Union and the evidence given by the employer at the hearing was that all of the employer’s employees were hired through the Union. As outlined earlier, since the Union insisted that its members become registered under the Act, this would necessarily entail that the worker was under the formal apprenticeship path. There would be no opportunity for the worker to pursue the credit/challenge path to journeyman status with this employer.

The panel also had difficulty reconciling the legal counsel’s argument with certain provisions of the AQTA. The panel does accept the proposition that the AQTA permits a worker to achieve journeyman status in more than one way. We also accept that when a worker proceeds by the formal apprenticeship route under the AQTA, the AQTA specifically defines that person to be an apprentice. Counsel was essentially urging us to label a worker who achieved journeyman status by way of credits/challenge to be considered an apprentice during the period prior to him/her achieving journeyman status. We are unable to do so. While there may be more than one way to become a journeyman, that does not necessarily mean that there is more than one way to become an apprentice. In other words, just because a person has become a journeyman, it does not necessarily follow that prior to becoming a journeyman, the person was an apprentice.

Section 17(9) of the ATQA provides as follows:

Prohibition of apprenticeship except by agreement

17(9) No person shall work for an employer as an apprentice in a designated trade except under an apprenticeship agreement, and no employer shall employ a person as an apprentice except under an apprenticeship agreement.

We interpret section 17(9) of the ATQA to mean that unless a registered apprenticeship agreement is in place, a worker cannot be called or declared an apprentice. The agreement must necessarily be registered because subsection 17(3) provides that: “An apprenticeship agreement has no effect under this Act unless it is registered by the director.” Thus, although an unregistered worker performing ironwork may ultimately be able to achieve journeyman status by way of credits/challenge, section 17(9) provides that the person may not be considered an apprentice while gaining the work experience.

It is the panel’s view that in order to be declared an apprentice under the terms and conditions of the AQTA, an individual must be a party to a registered apprenticeship agreement under that act. Although there is no requirement in the definition section of the AQTA for the apprenticeship agreement to be registered or in writing, the terms and conditions of the ATQA (in particular, subsection 17(3)) provide that an apprenticeship agreement has no effect unless registered by the director. Effectively, this creates the requirement that the apprenticeship agreement be registered and in writing.

Our decision is largely governed by the wording of the Policy which states “an apprentice as defined under the terms and conditions” of the AQTA. Had the wording of the Policy been limited to the definition of apprentice under the AQTA, our reasoning may have been different.