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NEWFOUNDLAND AND LABRADOR Workplace Health, Safety and Compensation Administrative Amended by: 85/23 NEWFOUNDLAND AND LABRADOR Workplace Health, Safety and Compensation Administrative (Filed August 31, 2023) Under the authority of section 150 of the Workplace Health, Safety and Compensation Act, 2022 , the Workplace Health, Safety and Compensation Commission, with the approval of the Lieutenant-Governor in Council, makes the following regulations. Dated at St. John’s, August 30, 2023. John Peddle Krista Quinlan REGULATIONS
Short title 1. These regulations may be cited as the Workplace Health, Safety and Compensation Administrative Regulations . Definitions 2. In these regulations (a) "Act" means the Workplace Health, Safety and Compensation Act, 2022 ; (b) "commercial fisher" means
(i
)
a
master or member of a crew of a licensed commercial fishing vessel,
(ii)
a master or member of a crew of a vessel which is engaged in fish packing, fish collecting or fish buying for commercial sale or use, or
(iii)
a
fisher who in the opinion of the commission contributes to the catching or landing of fish for commercial sale or use and who
(A)
in the course of the fisher's occupation as a fisher, contributes to the catching or landing of fish for arrival in ports of the province for sale or use by a fish processing establishment or other commercial buyer or commercial recipient of fish,
(B)
in the course of the fisher's occupation as a fisher, receives payment in the province for fish or for the fisher's contribution to the catching or landing of fish from a person engaged within the province in transmitting payments to fishers as a result of the commercial sale or use of fish,
(C)
has
made arrangements with the commission for the payment of assessments calculated by reference to the fisher's earnings from fishing, or
(D)
notwithstanding
these regulations, would be both a worker as defined in the Act and a fisher;
(c)
"commercial buyer" means a person who buys fish for resale or commercial use but excludes a person who buys fish for personal or family consumption;
(d)
"commercial recipient" means a person who receives fish for resale or commercial use but excludes a person who receives fish for personal or family consumption;
(e)
"commercial sale" means a sale to a person who buys fish for resale or commercial use but excludes a sale to a person who buys fish for personal or family consumption;
(f)
"fish
" means a species of animal living in water;
(g)
"fisher
" means a person who contributes in any manner to the catching or landing of fish;
(h)
"fishing
vessel" means a vessel used in catching fish or collecting and transporting fish for landing; (i ) "off-season " means the period during which a fisher has ceased operations, with a reasonable period for preparing and concluding the season's work, unless emergency circumstances prevail;
(j)
"permanent
disability benefits" means permanent partial or permanent total disability benefits payable under the Act; and
(k)
"reportable
injury" means an injury required to be reported to the commission under section 65 of the Act. Approval required
3.
(1) Where
an expenditure under section 11 of the Act equals or exceeds the amount of $100,000, the approval of the Lieutenant-Governor in Council is required.
(2)
For the purpose of this section, reference to an expenditure, is a reference
(a)
in
the case of an acquisition, sale or dealing, to each individual acquisition, sale or dealing; and
(b)
in
the case of a lease, to each individual payment in respect of the lease. Exclusions from Act
4.
The following types of employment and occupations are excluded from the application of the Act
(a)
employment
by a person in respect of construction or renovation of a private residence, where the residence is or is intended to be used as a private residence of the person;
(b)
employment
by a person in respect of a function in a private residence of the person; and
(c)
professional
sports competitors. Commercial fishers
5.
(1) Except
to the extent varied by these regulations or other regulations made under the Act, all provisions of the Act relating to workers shall apply to commercial fishers.
(2)
For the purpose of the Act, a commercial fisher's employment includes work activities directly related to the commercial fisher's occupation as a commercial fisher during the commercial fisher's normal fishing season but does not include off-season activities unless special coverage has been obtained from the commission.
(3)
A commercial fisher is not to be considered to be in the course of employment during the off-season. Interpretative provision for Act
6.
(1) For the purpose of section 52 of the Act
(a)
"employer
" includes a person required to pay assessments under section 8 and a person included in section 11, but does not include a commercial fisher; and
(b)
"worker
" includes a commercial fisher.
(2)
Section 59 of the Act does not apply to a commercial fisher.
(3)
For the purpose of sections 65 and 98 of the Act, the employer in respect of a fishing vessel owned or chartered by a commercial buyer or commercial recipient of fish is the vessel owner or charterer. Determination of fisher's earnings
7.
Average earnings in respect of a commercial fisher shall be determined in accordance with section 89 of the Act with reference to earnings from fishing in relation to which assessments have been paid or are required to be paid to the time of injury. Assessment of fishers
8.
(1) Unless
the commission otherwise determines,
(a)
a fish processing establishment licensed or required to be licensed under the Fish Inspection Act,
which directly or indirectly acquires fish from a commercial fisher, shall pay assessments on the fish acquired, except where the fish are acquired from another fish processing establishment;
(b)
a
commercial buyer or commercial recipient who acquires fish from a commercial fisher other than
(i
)
for
resale to a fish processing establishment, or
(ii)
as
an agent for a fish processing establishment, shall
pay assessments on the fish acquired;
(c)
a person who engages the services of a master or crew for a fishing vessel shall pay assessments on earnings of the master or crew in respect of which assessments are not paid or payable under paragraph (a) or (b); and
(d)
a
person engaged within the province in transmitting payment to a commercial fisher from the commercial sale of fish landed outside the province shall pay assessments on the payment.
(2)
Assessments shall be paid on the total wages, price or other payments made payable to or on behalf of a commercial fisher and shall be calculated and determined, and the commission notified, in the manner that the commission may require.
(3)
Priority of the commission in respect of an assessment from a person referred to in subsection (1) vests in the commission
(a)
in
relation to a fish processing establishment, a commercial buyer or a commercial recipient, on the day the fish is acquired;
(b)
in relation to a person engaging a master or crew, on the day the master or crew receive the earnings in respect of which the assessments are paid; and
(c)
in
relation to a person transmitting payment to a commercial fisher as described in paragraph (1)(d), on the day the commercial fisher receives the payment transmitted.
(4)
The fish processor, the commercial buyer and the commercial recipient are liable for the amount of the assessment in respect of the value of the fish purchased and the commission may levy upon and collect the assessment from one or more of them. Payment to fisher protected
9.
A sum payable for assessments shall not be deducted from a payment due to a commercial fisher. Registration required
10.
A person required to pay assessments under section 8 shall register with the commission and provide information that the commission may require. Responsibility of fishing vessel owner
11.
(1) A
fishing vessel owner shall comply with the Act and regulations and orders and directions issued under the Act in respect of fishing vessels.
(2)
Notwithstanding subsection (1), in addition to or instead of the fishing vessel owner, the commission may require that one or more of the following persons comply with the Act and regulations and orders and directions issued under the Act in respect of fishing vessels:
(a)
the
master of the fishing vessel;
(b)
a
commercial fisher;
(c)
the
fishing vessel charterer;
(d)
a
person engaged in the construction, repair or maintenance of fishing vessels; or
(e)
another
person who works in or contributes to the production of the fishing industry. Report of master of fishing vessel
12.
Where the master of a fishing vessel receives a report under section 65 of the Act, or becomes aware that a member of the crew has died or sustained an injury,
the master of the fishing vessel shall immediately report the death or injury to the owner or charterer of the fishing vessel or, where that is impracticable, to the commission. Fishing vessel owner to pay expenses
13.
Where a person transports an injured fisher in accordance with section 98 of the Act, the expense of transporting the injured fisher shall be paid by the owner of the fishing vessel on which the fisher is injured or, where the fishing vessel is chartered, by the charterer of the fishing vessel on which the fisher is injured or, in default of payment by the owner or charterer of the fishing vessel, the master of the fishing vessel. Educational institutions
14.
For the purpose of subsection 49(1) of the Act, the following are educational institutions:
(a)
Memorial University of Newfoundland;
(b)
College of the North Atlantic;
(c
)
Centre for Nursing Studies;
(d)
Western Regional School of Nursing; and
(e)
a
school as defined by the Schools Act, 1997
. Payment in death of worker 15. (1) Where the death of a worker results from an injury, the worker's surviving dependent spouse or cohabiting partner is entitled to (a) the greater of
(i
)
a lump sum payment equal to 26 times the worker's average weekly net earnings at the time of injury, or (ii) either (A) $15,000, where the death of the worker occurred before January 1, 2024, or (B) $24,000, where the death of the worker occurred on or after January 1, 2024; and
(b)
for
the period
(i
)
from July 1, 1996 to March 31, 2018, compensation in an amount equal to 80% of the worker's average weekly net earnings at the time of the injury less a survivor's pension payable to the
worker's surviving dependent spouse or cohabiting partner under the Canada Pension Plan or the Quebec Pension Plan, payable periodically until the date that the worker would have reached 65 years of age, and
(ii)
after March 31, 2018, compensation in an amount equal to 85% of the worker's average weekly net earnings at the time of the injury less a survivor's pension payable to the
worker's surviving dependent spouse or cohabiting partner under the Canada Pension Plan or the Quebec Pension Plan, payable periodically until the date that the worker would have reached 65 years of age. (2) Where the death of a worker results from an injury and the worker is survived only by one or more dependent children, in addition to compensation payable under section 80 of the Act, the dependent children are entitled to share equally in the greater of
(a)
a lump sum payment equal to 26 times the worker's average weekly net earnings at the time of injury, or (b) either (i ) $15,000, where the death of the worker occurred before January 1, 2024, or (ii) $24,000, where the death of the worker occurred on or after January 1, 2024.
(2.1)
A
payment referred to in subsection (2) shall be paid to the guardian of the property of the dependent children.
(3)
Where a
worker's surviving dependent spouse or cohabiting partner in receipt of a benefit under this section dies leaving one or more dependent children of the worker under the age of 18 years, the compensation payable under paragraph (1)(
b) shall be paid to the guardian of the property of the children until the youngest child reaches the age of 18 years.
(4)
Notwithstanding subsections (1) and (2), where the worker is 63 years old or more at the time of death, the periodic compensation under paragraph (1)(
b) shall be provided for a period of not more than 2 years following the death of the worker.
(5)
Nothing in this section affects the right of a dependent to continue to receive benefits to which the dependent was entitled to before July 1, 1996 and to increases to those benefits which may be provided under subsection 75(2) of the Act. (6) This section applies where the death of a worker results from an injury that occurred after June 30, 1996. Compensation of worker's surviving dependent spouse or cohabiting partner
16.
(1) A worker's surviving dependent spouse or cohabiting partner who is receiving or has previously received periodic compensation in respect of the death of a worker, regardless of the date of the injury, shall be entitled to a minimum level of compensation from September 1, 1998, payable periodically until
(a)
the worker's surviving dependent spouse or cohabiting partner reaches 65 years of age, where the death of the worker results from an injury which occurred on or before June 30, 1996; or
(b)
the date that the deceased worker would have reached 65 years of age, where the death of that worker results from an injury which occurred after June 30, 1996, and
after that, a worker's surviving dependent spouse or cohabiting partner may continue to receive compensation, if payable, according to the system of survivor’s benefits applicable to the worker’s fatality.
(2)
The minimum compensation payable shall be equivalent to $200 per week less
(a)
the gross weekly value of a survivor’s pension payable to the worker's surviving dependent spouse or cohabiting partner under the Canada Pension Plan or the Quebec Pension Plan; and
(b)
the
gross weekly value of a survivor’s pension payable to the worker's surviving dependent spouse or cohabiting partner under an employer-sponsored pension plan.
(3)
The amount payable to a worker's surviving dependent spouse or cohabiting partner under this section may be reviewed and adjusted to reflect changes in the survivor’s pensions payable to the worker’s surviving dependent spouse or cohabiting partner.
(4)
To be eligible to receive the minimum compensation a worker's surviving dependent spouse or cohabiting partner shall provide proof satisfactory to the commission of the receipt or non-receipt of the survivor’s pensions referred to in subsection (2).
(5)
Notwithstanding subsection (1), a worker's surviving dependent spouse or cohabiting partner shall not be entitled to the minimum compensation if
(a)
the worker's surviving dependent spouse or cohabiting partner was only eligible for lump sum compensation in respect of the death of a worker; or
(b)
the worker's surviving dependent spouse's or cohabiting partner's periodic compensation was terminated for reasons other than the date of birth or age of the worker's surviving dependent spouse or cohabiting partner, the worker or the worker's dependent children. Determination of benefits payable upon death of worker
17.
Where a worker dies from an injury, the benefits payable to a dependent of the worker on the worker's death shall be determined according to the regulations in force at the time the worker sustained the injury causing death. Commission to pay expenses
18.
(1) Notwithstanding section 17, where a worker dies as a result of an injury, the commission shall pay expenses for the burial of the worker or for a memorial service held for the worker, up to a maximum of $10,000 where the death occurs on or after January 1, 2019.
(2)
Notwithstanding section 17 and subsection (1), where a worker dies as a result of an injury, the commission shall pay expenses for the burial of the worker or for a memorial service held for the worker, up to a maximum of $5,000 where the death occurred on or after May 28, 1998 but before January 1, 2019. (3) Notwithstanding section 17, where, as a result of an injury, a worker dies on or after January 1, 2022, the commission may pay for a maximum of 10 bereavement counselling sessions for (a) the worker's surviving dependent spouse or cohabiting partner; and (b) each dependent child of the worker. Limit to compensation
19.
(1) A worker's surviving dependent spouse or cohabiting partner who is entitled to compensation by reason of the death of a worker, is not entitled to further compensation as a dependent of another worker.
(2)
Notwithstanding subsection (1), a person who is in receipt of compensation as the result of the death of a previous spouse or cohabiting partner is entitled to receive the compensation payable as a result of the death of the person's current spouse or cohabiting partner where the present value of that compensation exceeds the present value of the compensation the person is receiving, calculated by the commission as of the date of death of the current spouse or cohabiting partner.
(3)
Where compensation is paid under subsection (2), compensation being paid as a result of the death of a previous spouse or cohabiting partner shall cease.
(4)
Where compensation is not paid under subsection (2), compensation being paid as a result of the death of a previous spouse or cohabiting partner continues where the person continues to be entitled to receive it and the commission may pay the amount specified in the applicable regulation for burial or memorial expenses.
(5)
Compensation payable to a person under subsection 75(3) of the Act shall cease when a person becomes entitled to compensation as a worker's surviving dependent spouse or cohabiting partner. Maximum compensable assessable earnings
20.
The maximum compensable assessable earnings for 2015 and each year after that shall be calculated annually in accordance with the following formula: MCAE = (PMCAE x (Percent change in CPI/100))
where
MCAE means the maximum compensable assessable earnings PMCAE means the maximum compensable assessable earnings for the previous year
Percent change in CPI means the percent difference, rounded to one decimal place, between
(i
)
the average monthly Consumer Price Index as published for Canada by Statistics Canada for the 12 month July to June period immediately preceding the year of the maximum compensable assessable earnings calculation, and (ii) the average monthly Consumer Price Index as published for Canada by Statistics Canada for the 12 month July to June period immediately preceding the period referred to in subparagraph (i ). Occupational diseases
21.
(1) For the purpose of subsection 104(2) of the Act, the commission has set out the following occupational diseases and associated processes:
(2)
In the application of the Table in subsection (1), the degree and type of exposure should be taken into account when appropriate. Minimum assessment
22.
Where an assessment at a provisional or adjusted rate would be less than $50, an employer shall be assessed a minimum assessment of $50. Statements of payroll
23.
(1) Under subsection 123(2) of the Act, certified statements of payroll shall be signed by the employer or manager of the business or, where the employer is a corporation, by an officer of the corporation having a knowledge of the matter in the declaration, and shall be submitted to the commission no later than
(a)
30 days after becoming an employer under the Act; and
(b)
the
last day of February of each subsequent year.
(2)
An employer who fails to comply with subsection (1) shall be liable for an additional assessment in accordance with the following table:
(3)
In addition to a penalty imposed under subsection (2), the commission may impose a penalty of 10% of that penalty for each day during which the failure to comply with this section continues.
(4)
A penalty imposed on an employer under this section may be added to the employer’s assessment and payment enforced under section 140 of the Act. Fishing and logging industry reports
24.
(1) Notwithstanding section 23, an employer in the fishing industry shall submit a certified statement with respect to fish purchases, and an employer in the logging industry shall submit a certified statement with respect to pulpwood and logging production, to the commission
(a)
for
the first quarter of the year, not later than April 15;
(b)
for
the second quarter of the year, not later than July 15;
(c)
for
the third quarter of the year, not later than October 15; and
(d)
for
the fourth quarter of the year, not later than January 15.
(2)
An employer who fails to comply with subsection (1) shall be liable for an additional assessment in accordance with the following table:
(3)
In addition to a penalty imposed under subsection (2), the commission may impose a penalty of 10% of that penalty for each day during which the failure to comply with this section continues.
(4)
A penalty imposed on an employer under this section may be added to the employer’s assessment and payment enforced under section 140 of the Act. Payroll estimate adjustments
25.
(1)
Where the actual payroll of an employer is more than 125% of the estimated payroll provided by the employer under paragraph 123(2)(b) of the Act, the employer shall pay a penalty equal to 10% of the difference between the actual assessment and 125% of the estimated or provisional assessment.
(2)
The penalty referred to in subsection (1) shall be added to the employer's assessment.
(3)
Notwithstanding subsection (1), where the amount of the penalty calculated in accordance with subsection (1) is less than $50 the employer is not required to pay a penalty. Deduction from payroll 26. In calculating and adjusting the amount of the payroll of an employer under section 124 of the Act, an amount in excess of the maximum assessable compensable earnings paid to a worker shall be deducted from the amount of the payroll and the assessment shall be based on the payroll as reduced. Statement
27.
At the end of each year, a principal shall provide a statement to the commission which shall include the names of all persons to whom contracts were given during the previous year and details of those contracts in the form required by the commission. Permanent disability benefits
28.
(1) Where
permanent disability benefits are being paid to a worker in respect of an injury which occurred before January 1, 1984, those benefits may, after December 31, 1985,
(a)
where
there is no loss of earnings as a result of the injury, be converted to a lump sum payment based on the capitalized reserve established to sustain the permanent disability benefits, subject to the conversion being acceptable to the injured worker;
(b)
where
there is a demonstrated or considered loss of earnings as a result of the injury, be integrated into loss of earnings benefits; or
(c)
where
necessary or appropriate, be determined by using a combination of paragraphs (a) and (b).
(2)
In no case shall the conversion of benefits under subsection (1) result in a decrease in the amount of benefits being paid immediately before the conversion.
Recovery of assessments
29.
All penalties, assessments and amounts that may be assessed, imposed or recovered under these regulations may be recovered in the name of the commission in a court, but the commission, where satisfied that a default referred to in these regulations was excusable, may relieve the employer in whole or in part of a penalty. Commencement
30.
These regulations come into force on September 1, 2023. ©King's Printer |