[ql06] PUBLIC_CONTSITUTIONAL: Ruling weakens law, labour group fears

  • From: Sheldon Erentzen <sheldon.erentzen@xxxxxxxxxxxx>
  • To: QL'06 newslist <ql06@xxxxxxxxxxxxx>
  • Date: Tue, 03 Feb 2004 08:06:56 -0500

This case is reminiscent of the Bilbeault case we studied in Public last 
semester. Place des Arts simply fired their striking employees instead 
of hiring new ones. But as mentioned at the end of the article, if the 
striking workers had argued that by letting the tenant production 
companies hire their own production crews, the Place des  Arts was 
essentially outsourcing union jobs, they could have won. That was 
basically the argument in Bibeault (which, if Iremember correctly, the 
union lost on the jurisdictional issue of who gets to define the term 

Ruling weakens law, labour group fears


Tuesday, Feb. 3, 2004
Globe and Mail

QUEBEC -- Still stunned by last week's Supreme Court of Canada ruling, 
the Quebec Federation of Labour fears that the groundbreaking decision 
could weaken the province's law against the hiring of replacement 
workers during a strike.

"Maybe it will weaken the anti-scab law. Perhaps with the newly created 
Quebec Labour Relations Board the impact will be minimal. Only time will 
tell," Henri Massé, president of the labour federation, said yesterday.

"I would certainly have preferred not to have this kind of court decision."

In a unanimous ruling on Thursday, the Supreme Court overturned two 
lower court decisions, stating that an employer has the right to cease 
part of its business operations during a labour dispute and fire its 
striking employees.

The case involved Montreal's concert hall Place des Arts, which in 
November of 1999 fired 150 stagehands and technicians who had been on 
strike for nearly five months.

The Place des Arts simply told its five resident companies -- the Opéra 
de Montréal, Orchestre symphonique de Montréal, Festival international 
de jazz, Grands Ballets canadiens and Compagnie Jean-Duceppe -- that it 
would no longer offer technical support staff. The production companies 
were then required to hire their own crews.

Provisions in Quebec's labour law, adopted more than 25 years ago by the 
first Parti Québécois government, prohibit employers from hiring 
replacement workers during a strike. The provisions were argued 
successfully by the union before a labour tribunal, which fined the 
Place des Arts $500.

The Quebec Superior Court and the Quebec Court of Appeal later upheld 
the labour tribunal's decision. In the meantime, the Place des Arts and 
its technical employees reached a deal in 2001 as both sides waited for 
the court decision to settle the matter.

In overturning the lower court decisions, Mr. Justice Charles Gonthier 
of the Supreme Court argued that the Place des Arts did not abandon its 
technical services in an attempt to bypass the provisions in the law. 
The court argued the Place des Arts and its tenants were distinct legal 
entities and that the Place des Arts had "the right under Quebec law to 
go partially or completely go out of business."

"It is a bad decision. It doesn't respect the spirit of the law," Mr. 
Massé said.

"When you have an anti-scab law, it should be enforced . . .. This is a 
very conservative ruling that does not correspond with the spirit of 
Quebec's labour laws."

He expressed concern that other businesses using unionized workers in 
some service industries may use the ruling to sidestep provisions 
regarding replacement workers during labour disputes.

In a news conference yesterday, Mr. Massé warned that if the Place des 
Arts refuses to return to the bargaining table to negotiate a collective 
agreement, which expired in February of 1999, the QFL would consider 
taking further court action.

The impact of the ruling may not be as widespread as some fear, says 
Noël Mallette, who teaches labour relations management at the Université 
du Québec à Montréal.

"An employer has always had the right to shut down part or all of its 
operations," he said. "McDonald's restaurants did it twice in Quebec 
when workers tried to unionize."

In the Place des Arts case, Prof. Mallette said, the Supreme Court 
argued that there were two employers in the same workplace: the Place 
des Arts, which is a residence for production companies, and the tenants 
that produce the shows.

He said that if the union had argued in court that the Place des Arts 
was contracting-out part of its operations to bypass the strike, the 
ruling likely would have been different. Quebec law requires that if 
unionized jobs are sub-contracted to another employer, the 
sub-contractor must abide by the collective agreement that protects 
those workers and cannot hire replacement workers during a strike.

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