The worker is assigned to special programs at Fruit of the Loom Canada Inc. (hereinafter FTL), where she has worked for 46 years. In addition to this position, she is also the union steward for C.E.P. – union local 145 (hereinafter the Union).
The collective agreement reached between the parties contains a clause providing for the steward’s unpaid leave of absence to attend to union business taking place outside of FTL’s establishment. During these leaves, the steward is paid directly by the Union, who makes the deductions at source and, moreover, the worker is provided with an income statement at the end of the year.
On October 31, 2012, the worker is released from her special programs assignment to perform her union duties, that is, to accompany a fellow worker to a scheduled hearing before the Commission des lésions professionnelles, Quebec Workers Compensation Appeals Board (hereinafter the CLP).
On her way to this hearing, the worker falls on the street, injures herself and files a claim with the Commission de la santé et de la sécurité du travail, Quebec Workers Compensation Board (hereinafter the CSST), and then identifies FTL as employer.
FTL sends a letter to the CSST arguing that it cannot be retained as employer in connection with this claim because during the event of October 31, 2012, FTL was not exercising any control or direction over the worker’s activities, her schedule and even less on the location of her work.
The CSST concurs with FTL, identifies the Union as being the employer in the file and notifies it that the amounts associated with the industrial accident suffered by the worker on October 31, 2012 will be allocated to it. The Union contests this decision and it is upheld by the Direction de la révision administrative of the CSST (CSST’s Administrative Review Branch).
Before the CLP, the Union disputes the identification of the employer, as well as the allocation of the amounts to its file and asks the CLP to overturn the decisions rendered by the CSST, and to retain FTL as employer within the meaning of the Act respecting Industrial Accidents and Occupational Diseases (hereinafter the Act) in connection with the industrial accident suffered by the worker on October 31, 2012.
The CLP’s decision
In its reasons, the CLP retained the arguments submitted by FTL. In so doing, the CLP pointed out that, in the case at hand, the worker was not being paid by FTL on October 31, 2012, that it had no control or direction over her activities at the time and that it would not derive any benefit from such activities, these elements making it impossible to establish a relationship of subordination, even indirect, between the worker and FTL. Furthermore, the CLP is of the opinion that the preponderance of evidence in this file does not support the application of section 5 of the Act in this matter which applies to leased or assigned employees.
With regard to the Union’s argument to the effect that by being recognized as the actual employer, it would face problems managing the file, in particular, in the case where the worker’s capability would have to be analyzed, the Tribunal is of the opinion that the argument merely constitutes hypothetical considerations and points out, in passing, that it is not uncommon for an occasional employer to answer to an industrial accident claim.
Therefore, the Tribunal dismisses the appeal filed by the Union and upholds the decision rendered in first instance by the CSST, and states that C.E.P. – Union Local 145, is the actual employer of the worker for the purposes of the industrial accident that occurred on October 31, 2012.