CUB 64468

R. C. STEVENSON, UMPIRE:

The Commission appeals from the decision of a Board of Referees allowing Mr. McKenzie's appeal from its ruling that he did not qualify for waiver of the normal two week waiting period before unemployment benefits became payable.

Mr. McKenzie did not appear at the hearing of the appeal although duly notified.

Mr. McKenzie was pursuing a carpenter's apprenticeship course. When he attended a segment of the course in January and February 2004 he had established a claim for unemployment benefits and received benefits after the mandatory two week waiting period. He was employed from March 2 to December 23, 2004. The employer shut down between Christmas and New Years - the week of December 26 - January 1. He began the next segment of his course on Tuesday, January 4, following the long New Years weekend.

Mr. McKenzie received benefits for the week of December 26 because that was the last week of the benefit period he had established the previous January. Section 13 of the Employment Insurance Act and section 39.1 of the Employment Insurance Regulations are as follows:

13. A claimant is not entitled to be paid benefits in a benefit period until, after the beginning of the benefit period, the claimant has served a two week waiting period that begins with a week of unemployment for which benefits would otherwise be payable.

39.1 The waiting period shall be waived if the following conditions are met:

(a) the claimant is attending a course that is a required part of an apprenticeship program and to which they are referred pursuant to paragraph 25(1)(a) of the Act;

(b) the claimant has ceased working for the reason described in paragraph (a); and

(c) the claimant has, after the coming into force of this section, served a waiting period in respect of a course that is required part of the same apprenticeship program.

Section 39.1 was added to the Regulations by SOR/2002-280. The background was set out in the accompanying regulatory impact analysis statement which read, in part:

In support of the Skills Agenda, the Government of Canada announced in the Budget on December 10, 2001 that the Employment Insurance (EI) program would be modified so that apprentices in approved training programs would be subject to only one two-week waiting period per apprenticeship. Currently, apprentices must serve the two-week waiting period, during which no benefits are paid, each time they cease work to attend classroom training and file a new initial claim. Therefore, up to three to five waiting periods may have to be served during the course of an apprenticeship program.

The skilled trades provide good jobs to thousands of Canadians and are essential to the economy. Over the next few years Canada may be faced with a significant shortage of people with trade skills.

Apprenticeship is an industry-based method of training that leads to certification in a skilled trade. An apprenticeship program is a single continuous course of study stretching over a number of years. It generally combines systematic on-the-job paid training and in-class technical training at post-secondary institutions.

Apprentices are formally registered in an apprenticeship program regulated by the province or territory. In order to be registered, these trainees must have met the entrance requirements for an apprenticeship program and signed an apprenticeship contract with an employer, sponsor, or joint apprenticeship training committee.

An apprenticeship program typically involves twenty percent classroom training and eighty percent on the job training. Depending on the trade, three to five blocks of classroom training are generally required to complete the qualification.

To support individuals while they are learning these trades, the EI program provides benefits to apprentices in approved courses during periods of classroom training. However, serving multiple waiting periods over the course of an apprenticeship has been viewed as a financial deterrent to completing the training to earn the trade certification.

The waiver of the waiting period applies if a claimant's circumstances satisfy all three of the conditions set out in section 39.1. The Commission says Mr. McKenzie satisfied conditions (a) and (c) but not (b) because he had ceased working, not because he was attending his course, but because of a shortage of work.

The Board of Referees said:

FINDINGS OF FACT, APPLICATION OF LAW:

Legal Test
In the construction industry it is normal to shut down operations between Christmas and New Years, the claimant should not be penalized because his apprenticeship training followed the Christmas shut-down.

As the claimant started a new claim on January 2, 2005, his old claim is irrelevant and therefore the two week waiting period has already been served in his previous apprenticeship training.

Because the employer has approved his apprenticeship training and the claimant was returning to work for the same employer after finishing his apprenticeship training he was in fact fully employed when he started his apprenticeship training on January 4, 2005.

DECISION:

Appeal is allowed.

Counsel for the Commission has referred me to two decisions of umpires in similar, but not comparable cases. In CUB 62749 the claimant took time off to get married during the weeks immediately preceding resumption of his apprenticeship course. In CUB 63649 the claimant took a vacation just before returning to his course. In those cases the claimant made the decision to cease working for personal reasons. Mr. McKenzie had no choice - the employer shut down for the Christmas - New Years period.

The Board of Referees gave effect to the spirit of the regulation. They did not err in doing so. The Commission's appeal is dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
October 19, 2005