The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the firm was considered to be the employer of record in relation to a worker's claim for injury occurring on April 9, 2015. A hearing was held on June 5, 2017 to consider the employer's appeal.

Issue

Whether or not the firm should be considered to be the employer of record in relation to a worker's claim for injury occurring April 9, 2015.

Decision

That the firm should be considered to be the employer of record in relation to the worker's claim for injury occurring April 9, 2015.

Background

On May 3, 2016, an advocate for the appellant firm requested reconsideration of a decision by the WCB Assessment Committee that the firm was the employer of record with respect to a worker who was injured on April 9, 2015 while attending a union conference. The following is an excerpt taken from the Assessment Committee's decision dated February 8, 2016:

The Review Office has explained the provisions of WCB Policy 35.10.40 and Policy 44.10.50.60 to the employer, as noted previously herein. The board determined that the injury was sustained while the worker was engaged in an activity that was considered, upon review, to have been reasonably consistent with his expected activities, and with due consideration to the legitimate dietary needs associated with his diagnosed medical condition, while at a union convention.

The injured worker is an employee of the [employer]; he is not employed by the [union]…His earnings, benefits and his entitlements under the Act are established by his employment with the [employer], and not by his involvement with [the union]. 

Agreements between a union local and the employer, as to payment or reimbursement of workers' earnings (including benefits), do not affect the WCB's determination as to whom an injured worker is employed by, or the industry sub-group to which the costs of an accident are allocated.

The Assessment Committee agreed that the injured worker's activities at the time of his injury were consistent with his union activities, in conjunction with and as an extension of his employment at the [employer], and that these activities were and are explained in WCB policy as previously referenced. The appeal is therefore dismissed.

The advocate submitted that the prior board decisions were flawed and that the subject claim should not be considered to be the responsibility of the employer. Included with the request for reconsideration was a written opinion from a legal firm dated April 21, 2016.

On May 5, 2016, the advocate advised that the employer wished to change the issue on the appeal to acceptance of the claim. On October 18, 2016, the Appeal Commission considered the employer's appeal with respect to claim acceptability. On December 13, 2016, the panel determined that the claim was acceptable. In arriving at its decision, the panel declined to decide the further issue as to whether responsibility for benefit or compensation coverage should be assessed to the employer or the union in the circumstances. For complete details regarding the panel's decision, please see Appeal Commission Decision No. 184/16.

On January 19, 2017, the advocate for the employer appealed the issue of whether the employer was the employer of record in respect of the claim. On June 5, 2017, a hearing was held at the Appeal Commission to consider the employer's appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

WCB Policy 35.10.40, Compensation Coverage for Union Activities (the "Policy") describes when and how workers are covered for compensation when involved in union activities. The purpose of the Policy is stated as follows:

In a unionized workplace, union members and elected officials are periodically required to attend to union business. Subject to the terms of the collective agreement or other workplace arrangements, the employer may continue salary, continue salary with subsequent reimbursement by the union, or provide an unpaid leave of absence. In some cases the union may pay salary (or a salary equivalent) directly to the worker. In other cases the worker participates as an unpaid "volunteer".

This policy describes when and how workers are covered for compensation when engaged in union activities. Once coverage under the Act is established, a claim for an accident which occurs while on union business will be adjudicated based on the Act and relevant WCB policies.

Section A of the Policy provides that:

1. A worker who is on approved leave of absence to conduct union business continues to be covered under the regular employer's workers compensation registration when the regular employer continues to pay the worker's salary, regardless of whether the union subsequently reimburses the employer for such costs.

2. When the regular employer does not continue the worker's salary and the union pays the worker's salary directly, coverage will be under the union's workers compensation registration. The union must report and pay assessments on the salary paid to the worker. Payment of any non-taxable remuneration, such as token payments, daily allowances, or reimbursement of expenses, is not considered to be a payment of salary.

3. When the worker is not paid salary by either the regular employer or the union, the worker is considered to be a "volunteer" and would not be covered…

Employer's Position

The employer was represented by an advocate, a senior administrator and a safety officer. The employer's position was that it is contrary to the Act, WCB policy and workplace safety and health legislation to hold the employer responsible for the safety, health and compensation of workers who are injured while attending union conventions held offsite, when wages and all costs related to worker benefits, including WCB premiums, are being paid or reimbursed by the union holding the convention. It was submitted that the union should be considered to be the employer of record in the circumstances of this case, and compensation coverage for the worker's claim should fall under the union's workers compensation registration.

Referring to the stated purpose of the Policy as set out above, and in particular to the phrase "Subject to the terms of the collective agreement or other workplace arrangements…", the advocate submitted that the Policy first recognizes and respects the role of collective agreements or workplace arrangements, then determines coverage for workers who are on leaves of absence for union business. It was noted that while the scenario in Section A.2 of the Policy does not necessarily fit the scenario in this case, it confirms that the WCB recognizes a scenario where the union is considered to be the employer of record and respects the workplace/union arrangement.

The advocate submitted that the collective agreement between the union and the employer recognized the worker's attendance at the union convention as being on an unpaid leave of absence, with the requirement that the union reimburse the employer for all pay and benefits during that period of absence. Benefits were defined to include the employer's share of all worker benefits, including workers compensation premiums. In the employer's view, the language in the collective agreement demonstrated a clear intent by the union to act as the employer of record during this specific type of unpaid leave. If the union did not intend to assume responsibility for injuries that might arise out of the union-related activities, they would not have agreed to pay for WCB premiums.

The advocate submitted that the Policy describes three scenarios which give direction on coverage. However, none of the scenarios completely applies to the claim. The advocate acknowledged that Section A.1 of the Policy appeared to address the worker's circumstance, but noted that this section only refers to the continuation of the worker's salary as opposed to all pay and benefits as provided under the collective agreement.

It was submitted that while the facts of this case do not neatly fit into any of these scenarios, the over-arching intent and purpose of the Policy would be met by determining coverage "subject to the terms of the collective agreement." As it was the union's intent under the collective agreement to be the employer of record, the WCB should respect and assign coverage for the claim under the union's workers compensation registration.

The advocate noted that the employer did not dispute that the worker continued to be an employee of the firm during his unpaid leave of absence, but submitted that while he was away from his primary job and at the union convention, the union assumed responsibility for his wages and benefits, and therefore assumed responsibility for his safety and health. For the WCB to expect the regular employer to continue to assume all the same employer responsibilities during the unpaid leave of absence was unreasonable and inconsistent with the terms of the collective agreement.

The advocate submitted that there is a clear connection between accident prevention and workers compensation experience, and that employers cannot be held responsible for injuries that occur at a location where the worker is not under their control and direction. In the employer's view, it is inconsistent with the Act and workplace safety and health legislation to consider the claim as an "accident" that occurred out of and in the course of employment with the employer in these circumstances.

The advocate referred to several other WCB policies, some of which were referenced in the Policy, as containing a common theme, namely that the employer, whoever it is, is responsible for the worker's injuries while the worker is under the control and direction of the employer. The advocate noted that it was the union which arranged the event and had control over the location of the convention and the worker's activities in this case, not the employer, and submitted that these other policies also clearly support that the union more closely resembled the description of the employer of record in the circumstances.

Third Party (Union's) Position

The union participated in the hearing as a party with a direct interest in the matter under appeal. The union was represented by legal counsel, who was accompanied by a union representative. Legal counsel provided a written submission in advance of the hearing, and made a submission to the panel.

The union's position was that the appellant firm is the employer of record for the worker and should be responsible for the claim. The worker was employed by the appellant firm, and as such was a member of the union. The union and the employer were parties to a collective agreement. The union did not dispute that the worker was attending a union convention when he was injured. They agreed that the claim was acceptable, as an accident which arose out of and in the course of the worker's employment on April 9, 2015. It was submitted that the worker would not have been attending the convention but for the fact that he was covered by the collective agreement. His attendance was clearly a union activity that arose out of and in the course of his employment.

Legal counsel noted that the worker was on an approved leave of absence for union business at the time of the injury, as per article 24.02 of the collective agreement, entitled "Union Conventions." That article provided that the employer "…shall, if requested by the Union, continue to pay the Employee during the periods of leave of absence without pay as if he/she had remained at work" and the employer "will then bill the Union an amount equal to actual cost of the Employee's wage and benefits."

Legal counsel submitted that Section A.1 of the Policy clearly applied in the circumstances of this case, and the worker should continue to be covered under the regular employer's WCB registration where, as here, the employer continued to pay his salary. The fact that the union reimbursed the firm for the worker's earnings and benefits did not change who the employer of record is. The worker was on an approved leave to participate in union activities and the union fulfilled its obligations under the collective agreement when reimbursement was made.

In conclusion, it was submitted that the union does not employ the worker, the appellant firm does. The firm is therefore the employer of record, and the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the appellant firm should be considered to be the employer of record in relation to a worker's claim for injury occurring April 9, 2015. For the appeal to be successful, the panel must find that compensation coverage for the worker's April 9, 2015 accident should be under the union's workers compensation registration. The panel is unable to make that finding, for the reasons that follow.

The panel is satisfied that responsibility for workers compensation coverage should be assessed to the employer in the circumstances of this case. There is no dispute that the worker was on an approved leave of absence attending a union conference on April 9, 2015, that the employer continued to pay the worker's salary during that leave of absence and that the union subsequently reimbursed the employer for such costs.

The panel finds that the Policy is clear and unambiguous, and the facts of this case fall squarely within Section A.1 of the Policy, which provides that a worker on leave of absence to conduct union business "continues to be covered under the employer's workers compensation registration when the regular employer continues to pay the worker's salary, regardless of whether the union subsequently reimburses the employer for such costs." (emphasis added)

While the employer argued at length with respect to other legislation, including workplace safety and health legislation, and WCB policies on direction and control, the panel finds that those arguments are not relevant to the issue which is before us. The WCB policies which were referenced in those submissions are found in a different area of the Policy Manual and relate to claim acceptability and the scope of employment. Such issues were before the panel and decided in the previous Appeal Commission decision and were no longer at issue or relevant on this appeal. The issue in the present case relates only to assessment and compensation coverage, and the Board has established the criteria which are to be applied in determining these matters in the Policy. Direction and control are not identified as applicable criteria or factors under the Policy.

Based on the foregoing, the panel finds that compensation coverage for the worker's April 9, 2015 accident should be under the employer's workers compensation registration.

The panel therefore finds that the appellant firm should be considered to be the employer of record in relation to the worker's claim for injury occurring April 9, 2015.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of August, 2017