The purpose of this policy is to:
This policy applies to every individual connected to an industry or activity covered under the WC Act and Regulations.
The WC Act provides no-fault compensation coverage for workers. In order to determine who is covered, the term “worker” is used in the administration of Part 1 of the WC Act, and to determine if an individual is covered under the WC Act for purposes such as:
The term “worker”, as defined in the WC Act, applies only to those in an employment relationship under the legislative jurisdiction of the province.
The WC Act defines the term “worker” by specifically including and excluding certain types of individuals as workers. When certain types of individuals are not specifically named, WorkSafeNB has the authority to prescribe terms and conditions for when a particular group may be covered. In addition, WorkSafeNB has discretionary authority to admit certain individuals excluded under Regulation 82-79 – Exclusion of Workers (see section 3.1 of this policy).
The term “employee” is used in the Occupational Health and Safety Act (OHS Act). The definition of employee, for the purposes of the OHS Act, does not impact on the intent and purposes of the WC Act, and vice-versa. For more information, see Policy 26-010 Definition of Employee.
2.0 Definition of Worker - Inclusions
A worker includes any individual in an employment relationship. This is an individual who receives remuneration for work or services performed for an employer (sole proprietorship, partnership, or corporation) in an industry within the scope of Part 1 of the WC Act.
2.1 Legislative Inclusions
The WC Act includes certain types of individuals as workers. This includes:
Municipalities are required to submit reports for municipal volunteer fire department members, and pay an assessment as outlined in Policy 23-200 Assessable Earnings.
In addition, WorkSafeNB may include management personnel who are owners (sole proprietors or partners), their spouses, and executive officers not in receipt of remuneration. These individuals are only considered workers under the WC Act when personal coverage is extended under Policy 23-100 Employer Registration.
Learners are individuals who do not receive remuneration for work being performed, but who are subject to the risks of an industry because of a training program supplied or required by an employer as a prerequisite to employment. This includes an individual who is required by employment to participate in an educational institution’s approved program, or a government-approved work experience program.
WorkSafeNB also considers an individual who participates in probationary on-the-job training, required by an employer before employment, to be a learner.
Community College Learners
WorkSafeNB has an agreement with the New Brunswick Community College (NBCC) and Collège communautaire du Nouveau-Brunswick (CCNB) to further define learners of the colleges.
In accordance with this agreement, WorkSafeNB also considers an individual to be a learner while:
Also learners include high school students while on NBCC or CCNB premises for a purpose of the college. This may include, for example, when the high school student attends a tour or a course offered by the college.
NBCC and CCNB are self-insured employers and, therefore, are responsible for the full costs of their claim. For more information on how WorkSafeNB allocates claims costs for learners see Policy 21-300 Allocation of Claim Costs.
In addition to the volunteers described in section 2.1 of this policy who are specifically included by legislation, WorkSafeNB considers some other volunteers to be workers under the WC Act as well. These volunteers are:
WorkSafeNB considers these individuals as workers under the WC Act when:
A person asked to give assistance at a fire or accident site by the fire chief or deputy is included as a worker under the WC Act, even though this person may not be an assessed member of the fire department as described under section 2.1 of this policy.
Only the volunteers outlined in this section, and the volunteers specifically included under section 2.1 of this policy are considered workers under the WC Act.
2.4 Injured Workers in Treatment
WorkSafeNB also includes as a worker under the WC Act a worker receiving Commission approved treatment for a compensable condition. For more information on injuries occurring during treatment, see Policy 21-108 Conditions for Entitlement - Injuries During Rehabilitation.
Contractors and subcontractors working for a principal generally do not have a traditional employment relationship. Therefore, a contractor or subcontractor is not automatically considered a worker of the principal. WorkSafeNB has the discretion to determine if a person working on a contract or subcontract basis is a worker of the principal.
If the principal is an assessed employer, all contractors, sub-contractors, and their employees may be considered workers of the principal.
An unassessed principal is required to register and pay assessments to WorkSafeNB, when there is a combination of three or more of the following individuals working for the principal:
WorkSafeNB considers these individuals as workers of the principal and determines the principal to be an assessed employer.
When determining if an individual is a worker of the principal, WorkSafeNB may consider the following criteria:
WorkSafeNB weighs all of these factors together to determine if an individual is a worker of the principal. The presence or absence of one of these factors is not conclusive in determining if this person is a worker. If all of the factors together weigh more in favor of the principal, the individual should be considered a worker of the principal. However, if all of the factors together weigh more in favour of the individual, the individual should not be considered a worker of the principal.
2.6 Duration of Work Performed Within Province
An individual is considered a worker under the WC Act, provided the employer is assessed, or should be assessed. It is not necessary for the individual to work in New Brunswick at all times, since the WC Act does not prescribe a minimum time requirement regarding the amount of work that must be performed in New Brunswick.
3.0 Definition of Worker - Exclusions
The WC Act specifically excludes the following individuals from the definition of a worker:
3.1 Exclusions – Regulation 82-79
The number of workers that an employer usually employs is not affected by the full-time or part-time status of the worker. In other words, any employer with three or more workers usually employed (25 for the fishing industry) is required to pay assessments, even if the entire staff is employed part-time.
WorkSafeNB interprets the term “usually employed” as meaning a predictable pattern of employment, including seasonal or repeated hiring trends. The length of time the person is employed is not a consideration for exclusion.
For example, an unregistered accounting firm which has two employees during most of the year and annually requires extra casual staff during the income tax period (March and April) must register for coverage with WorkSafeNB from the date it had three or more individuals hired to work.
WorkSafeNB interprets the term “fishing industry”, for the purposes of the legislation, as employers directly involved in vessel preparation and catching and landing of fish.
“Fishing industry”, as interpreted by WorkSafeNB, does not include employers whose primary activities are in areas such as:
Appeals Tribunal - means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act.
Assessed employer - any employer who pays or is required to pay assessments under the WC Act. This includes self-insured employers.
Employer - includes
(a) every person having in his service under contract of hire or apprenticeship, written or oral, express or implied, any worker engaged in any work in or about an industry,
(b) a municipal corporation, commission, committee, body or other local authority established or exercising any powers or authority with respect to the affairs or purposes, including school purposes, of a municipality,
(c) a person who authorizes or permits a learner to be in or about an industry for the purposes mentioned in the definition "learner",
(c.1) a deemed employer, and
(d) the Crown in right of the Province of New Brunswick, and of Canada, and any permanent board, commission, or corporation established by the Crown in right of the Province of New Brunswick, or of Canada, in so far as they, or either of them, in their capacity as employers, submit to the operation of this Act. (WC Act)
Outworker - a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for use or sale, in his own home or in other premises not under the control or management of the person who gave out the articles or materials (WC Act)
Principal - Any person or employer providing work on a contract or sub-contract basis to another person(s) or employer(s).
WorkSafeNB - means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.