Definition of Worker Policy 21-010 | Effective Date: January 23, 2017

Purpose 

The purpose of this policy is to:

  • Provide direction to WorkSafeNB staff for determining if an individual is a "worker" under the Workers` Compensation Act (WC Act); and
  • Communicate to workers and employers the guidelines that WorkSafeNB uses to consider if an individual is a “worker” under the WC Act.

Scope

This policy applies to every individual connected to an industry or activity covered under the WC Act and Regulations.

Statements

1.0 General

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:  

  • Employer assessments;
  • Payment of compensation benefits; and
  • Rehabilitation.

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:

  • Learners, where training occurs at an assessed employer’s place of business;
  • Emergency service workers;
  • Management personnel;
  • Executive officers of corporations on pay-roll;
  • Persons assisting a peace officer; and.
  • Members of a municipal volunteer fire department.

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.

2.2 Learners

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:

  • Attending regular classroom training and curriculum-related activities at an NBCC or CCNB facility; or
  • Participating in work practicum as part of the NBCC or CCNB course or program.

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.

2.3 Volunteers

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:

  • Volunteer ambulance drivers/attendants;
  • Volunteer/auxiliary police officers and police constables when appointed under the Police Act; and
  • Volunteer executive members of a labour union.

WorkSafeNB considers these individuals as workers under the WC Act when:

  • The employer applies to have coverage for those individuals; and
  • Reports and assessments for these volunteers are submitted and paid as set out in Policy 23-200 Assessable Earnings.

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.

2.5 Contractors 

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:

  • Employees of the principal;
  • Unassessed contractors and their employees; and
  • Unassessed subcontractors and their employees. 

WorkSafeNB considers these individuals as workers of the principal and determines the principal to be an assessed employer.

Determining Factors

When determining if an individual is a worker of the principal, WorkSafeNB may consider the following criteria:

  • Who has care and control of the location where the work is performed?
  • Who receives the benefit from the completion of the work?
  • Who is responsible for giving orders or instructions on the performance of the work?
  • Who owns or supplies the equipment or materials to perform the work?
  • Is the work performed for payment or other considerations from the principal?
  • To what degree of financial risk is the contractor, subcontractor, or their employee(s) exposed?

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:

  • Casual workers not working for the purpose of the industry;
  • Professional sports persons (main source of income);
  • Outworkers;
  • An employer’s family members under sixteen years of age, residing with the employer; and
  • Domestic servants.

3.1 Exclusions – Regulation 82-79 

Regulation 82-79 specifically excludes certain individuals from being workers under the WC Act. This includes individuals employed by any employer in:

  • An industry having less than three workers usually employed (2 or less); and
  • The fishing industry having less than twenty-five (25) workers usually employed (24 or less). 

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. 

Fishing Industry

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:

  • Non-commercial fishing;
  • Selling and marketing;
  • Delivery and transportation;
  • Fish processing; and
  • Aquaculture.

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.

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