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
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
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
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.
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