Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 3

8.3.0 Place of employment

The term "place of employment" has been understood and applied in much the same way for many years, and recent judgments on this subject have made no attempt to stray from the beaten path. The Act specifically situates this concept at the factory, workshop or other premises at which the claimant was employed.

This observation is somewhat surprising when compared with the evolution of other concepts involved in the application of the labour dispute clause. "Place of employment" has not, for example, kept pace with the increasing frequency of large-scale labour disputes at a time of budget cuts and staff reductions, specifically in the public and non-public sector. We have in fact perpetuated an approach to entitlement to benefits based on a specific examination of the individual place of employment, be there 10 or 10,000 of them, even if such a dispute has spread generally throughout the country. This has created very real administrative problems, given the size of the task and the variety of possible situations; depending on the sector affected, we have witnessed sporadic walkouts and varying degrees of difficulty in maintaining essential services.

Be that as it may, the concept of place of employment has generated little litigation in the appeals system. Yet the subject is far from simple; like the other three prerequisites for the application of the labour dispute provisions ^{Footnote 1} , it deserves examination.

In fact, in the context of the labour dispute provisions the concept of place of employment has a very strict connotation. It refers to a precise geographic boundary within which all of the characteristic features for the application of the labour dispute provisions must be present.

This restriction is all the more pronounced when there are separate activities within the same establishment; each of these is said to constitute a distinct place of employment ^{Footnote 2} .

Recognition of the specific nature of a place of employment may certainly provoke disagreement; hence the need to distinguish between the following cases:

1. Distinct geographic site;
2. Activities or services sharing the same physical site;
3. Construction industry;
4. Logging industry;
5. Commercial vehicles;
6. Businesses of national scope;
7. Merchant marine.

8.3.1 Distinct geographic site

Because the statute provides no definition for the terms "factory", "workshop", or "other premises" found in the labour dispute provisions, they must be given their ordinary meaning, taking into account the geographic situation at each place of employment. Usually, they refer to a very specific geographic site ^{Footnote 3} .

Consequently, the relative proximity or distance of physical premises where services or activities are conducted is an important factor. Two factories located in different places are undoubtedly two distinct places of employment, even if such establishments are under the same management or located in the same city. The same is true for a head office located two miles from the plant; each location amounts to a distinct place of employment.

8.3.2 Activities or services sharing the same physical site

The word "premises" used in the Act does not necessarily mean a structure surrounded by four walls ^{Footnote 4} . It may mean a building and secondary structures, or all buildings located on the same property.

A serious examination of the situation is required here in order to determine whether these are the same premises ^{Footnote 5} or whether they are distinct businesses, each of which should be viewed as a distinct place of employment. The same question arises when there appears to be different departments or services within the same premises; the question then is whether each department is supposed to constitute a distinct establishment ^{Footnote 6} .

Some criteria are available to simplify what at first glance would seem to be a complex process of analysis. The following elements should be considered ^{Footnote 7} :

1. the nature of operations within the establishments or departments;
2. the type of work carried out in each establishment or department;
3. the nature of the end products or services rendered;
4. the degree of functional integration and interdependence;
5. the degree of interdependence of management;
6. the physical proximity of the places of employment.

Various departments operating from the same place are considered to be distinct places of employment insofar as the activities of each are normally carried out as distinct businesses in separate premises. It is not sufficient to have distinct types of operations being performed, as for example the work of office employees versus that of plant employees ^{Footnote 8} . The same is true for office work, maintenance, shipping, delivery and purchasing, all of which are usually only divisions of the same firm.

In the end, the test is whether the operation constitutes one or more distinct businesses. When a firm offers two types of services amounting to distinct businesses, for example a vending machine and a cafeteria division, each group of workers is considered to have its own place of employment, even where the services of each division are provided within the same plant.

When several buildings share a common enclosure, they are generally considered a single place of employment; on a practical level these structures are only divisions of the same business. The condition, however, is that the various branches of operations be elements of one and the same business.

Departments that are normally not linked to the same firm suggest the existence of several distinct businesses. Here it must be determined whether the departments constitute one and the same business, or if they should be viewed as distinct businesses.

There are numerous examples of cases where various departments sharing a common geographic site have been considered as distinct businesses. Some examples are: an electric power plant was considered as ancillary to a sawmill operation; a pastry business and a bakery; a sawmill and a plywood plant or a cardboard mill; an oil refinery and the marketing division. But a smelter and its subsidiary railway and construction operations were regarded as a single integrated business, even though they were legally distinct entities.

Where several operations regarded as different businesses, namely a sawmill, a garage, a dock, a logging camp and a cardboard mill, were all administered from an office within the mill itself, the office and mill workers were deemed to work in the same place of employment. An exception was made for a few office employees whose duties were exclusively associated with the logging operations.

In another context, a depot located within the same building as the central administration but associated with plant operations two miles away was a distinct place of employment. The dispute involving the plant and depot employees did not exist at the central administration building.

Sometimes, it is not possible to conclude that seasonal repair work is a distinct operation considering the ordinary operations of the plant, although on other occasions workers employed by outside contractors, whether on machinery installation or construction work, have been held to have distinct places of employment from plant employees.

8.3.3 Construction industry

This major industry employs thousands of workers in several dozen trades across the country. Their working conditions are governed, depending on the situation, by distinct collective agreements for each group or by legislation applying to workers throughout a given province.

It is thus not surprising that, in recent years, major disputes have paralyzed operations in this key sector of the economy and in those to which it is directly related. In the circumstances, this has led to very real administrative problems for the Service Canada Centre. In applying the labour dispute provisions of the Act, it is not enough to determine that a labour dispute exists throughout a province between construction employers and employees. In addition, it must be determined whether the labour dispute actually exists on the site where the claimant is employed, and this requires an investigation for every single construction site.

A construction site is generally considered to consist of all construction work carried out at a given geographic site. Each construction site constitutes a distinct place of employment at which a variety of different contractors or subcontractors are involved at different stages of construction. Consequently, even when specific contractors have no labour dispute with their employees, a labour dispute may still exist at their place of employment ^{Footnote 9} .

Even when there is a generalized dispute throughout the industry, the various construction sites cannot be treated as if they constitute a single place of employment. There are as many places of employment as there are construction sites. To determine whether a labour dispute exists, the events that occur on the site as a whole must be considered, and not simply the specific situation of an individual employer. The place of employment of each construction worker is the site where the work is performed, and this site must be clearly identified and defined.

If the construction work is located at a site where other businesses in different fields are carried on, such businesses must be considered as different places of employment. An example would be construction work carried out at a plant, unless the work is being performed by a division of a single large firm. Any labour dispute arising at one of these firms or on the construction site is thereby confined to the specific place where it arises, unless events show that it has spread elsewhere because other employees and employers within the same enclosure are playing an active role in the dispute.

A claimant's place of employment cannot be deemed to be the business office of the employer, from which the firm is managed, because the claimant was employed at the construction site itself.

A construction employee laid off after work is completed at a specific site cannot be considered as having lost employment because of a stoppage of work attributable to a labour dispute, if work cannot be found at another site because of the existence of such a stoppage of work ^{Footnote 10} . This event has in fact not taken place at the site where the claimant actually worked. The loss of employment is really due to a shortage of work.

8.3.4 Logging industry

Forestry operations tend to be spread over a wide area that encompasses several divisions, such as woodlands, booming, sawmill and trucking.

The woodlands, booming and sawmill divisions are all different places of employment ^{Footnote 11} . Trucking is usually part of the woodlands operations. Each camp within the woodlands division may be considered as a distinct place of employment, so long as it is reasonably distant and operated independently.

Where a claimant was employed in unloading saw logs, the place of employment was the woodlands division to which the claimant was assigned and not the nearby sawmill. Similarly, office workers whose duties related exclusively to the woodlands operations were deemed to be employed at a different place from that of their co-workers, whose duties related to other divisions.

On another occasion, it was held that the labour dispute which had provoked the claimant's stoppage of work really took place where he was working. As soon as the conflict related to the claimant's working conditions, the only possible conclusion was that the dispute existed at the place where he was working ^{Footnote 12} .

The argument that the premises of the employer was the place of employment of a truck driver rather than the place where he regularly delivered logs, where, at that moment the labour dispute existed, was not retained. In fact, even though the claimant was not employed by the employer who was a party to the labour dispute, at least part of his employment occurred at the premises where the labour dispute existed ^{Footnote 13} .

8.3.5 Commercial vehicles

Many trades and professions involve the frequent and even constant use of commercial vehicles: examples include sales representatives, taxi or bus drivers, delivery-persons, truck drivers and their helpers, and so on.

Even though such individuals spend most of their time at the wheel of their vehicles, their place of employment is usually designated as being the place where they receive their instructions or merchandise, and not the vehicle itself ^{Footnote 14} . Consequently, a labour dispute underway at some point on their route is not occurring at their place of employment; however, a dispute-taking place at their depot is occurring at their place of employment.

8.3.6 Businesses of national scope

A number of companies have a network of business offices and branches across Canada or at the very least in major areas of the country. This is particularly true of businesses with operations associated with federal authorities, such as railway, road and air transportation, broadcasting, banks, the post office, and so on. The same applies to department stores and insurance companies.

With such firms, negotiations concerning renewal of a collective agreement are usually held at a national table, and the dispute resulting from a breakdown in such negotiations takes on a scale proportionate to the scope of the business.

Even if the dispute spreads throughout the operations of the company as a whole, this does not mean that a single place of employment is involved. Every office, place of business, centre of operations or branch constitutes a distinct place of employment ^{Footnote 15} that must be examined individually ^{Footnote 16} .

8.3.7 Merchant marine

The merchant marine encompasses all operations related to commercial and fishing vessels ^{Footnote 17} . Labour disputes that disrupt operations in this sector of the economy usually involve a ship owners' association and a labour union on a waterway such as the St. Lawrence or the Great Lakes, or the Atlantic or Pacific coasts.

In this case, there cannot be a single place of employment. Even when several vessels belong to the same ship owner, each must be viewed as a distinct place of employment ^{Footnote 18} . It is thus important to establish the repercussions that an industry-wide labour dispute has on the vessel where the claimant actually works, and whether or not there really is a dispute on that vessel.

Similarly, shore-workers have their own distinct place of employment.