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 "undertaking"). Ruling weakens law, labour group fears By RHÉAL SÉGUIN 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.