JOC ARCHIVES

June 24, 2013

Supreme Court rules against random testing

Labour unions are hailing a Supreme Court ruling as a major victory in the fight against random drug and alcohol testing, but others aren't so sure.

“Random alcohol testing is a humiliating invasion of an individual’s privacy that has no proven impact on workplace safety,” said Dave Coles, president of the Communications, Energy and Paperworkers (CEP) Union of Canada.

“The Supreme Court’s decision makes it clear that employers can’t simply impose random alcohol testing on their workforce. They need to negotiate this question.”

The Supreme Court of Canada released a 6-3 decision on June 14, which ruled that Irving Pulp and Paper Ltd. in Saint John, New Brunswick was unreasonable when the company unilaterally adopted random drug testing in 2006 for employees in safety-sensitive positions.

CEP Local 30 filed a grievance challenging the policy after a worker was chosen randomly by a computer program to take a breathalyzer test.

The test showed a blood alcohol level of zero, but the worker said the test was humiliating and unfair.

The Supreme Court ruled that a dangerous workplace does not give an employer an automatic justification for random testing.

In coming to this conclusion, the court dealt specifically with the need to balance privacy rights and safety in dangerous workplaces.

Alberta Federation of Labour president Gil McGowan argued that the decision will have a significant impact on the future of random drug testing in Alberta.

“Employers can’t arbitrarily introduce a random drug or alcohol testing regime by declaring a workplace ‘dangerous’ without proving that there’s a problem,” he said.

“There’s a direct parallel between this case and what’s happening at Suncor: there’s no evidence that there’s a problem and the employer can’t simply impose their will on the workers and strip them of their privacy without proving there’s one.”

In late June 2012, Suncor announced that union members would be required to participate in a Drug and Alcohol Risk Reduction Pilot Project (DARRPP).

The two-year initiative, was scheduled to begin on Oct. 15, 2012.

The pilot project included random workplace drug and alcohol testing for union members and contractors working in safety-sensitive or specified positions.

However, Alberta Court of Queen’s Bench Justice Eric Macklin granted a temporary injunction in October 2012 against the testing at Suncor oilsands facilities.

The injunction was upheld by the Alberta Court of Appeal on Nov. 28, when Justice Myra Bielby said Suncor’s plan for random drug testing was a significant breach of worker’s rights.

Despite the Supreme Court’s decision in the Irving Pulp and Paper case, some union leaders are less sure of the impact of the case.

The United Steelworkers in B.C. have keen interest in the ruling because Teck Mining Company is randomly testing workers for drugs and alcohol at the Coal Mountain mine near Sparwood, BC.

“The notion that you can treat someone as if they are guilty until proven innocent has been struck down,” said Alex Hanson, president of United Steelworkers Local 9346.

“It looks like the issue was random alcohol testing, but we are dealing with random drug testing and alcohol. So, we are not sure what it means.”

Teck Mining Company began random drug tests on workers in December 2012 at five mines in the Elk Valley in southeast B.C.

The rationale behind the program is to deter some of the 3,500 coal miners and contractors from the use or misuse of alcohol or prescription drugs by providing a random urine sample.

As a result, the United Steelworkers filed a grievance against Teck, which was dismissed by the arbitration process.

“I would like to see the company suspend testing, while the legalities of testing are sorted out,” said Hanson.

“We have privacy laws and if the company wants to change it, they must go to court first. In my opinion, they are breaking the law.”

According to Hanson, the new testing regime will require workers to prove they are not abusing their own medication to a third party or company approved doctor.

“The change is so vast and sweeping. It is also about medical testing,” he said.

“In the process of saying we will keep you safe, our medications and medical files are out in front of the company.”

Hanson argued that the approach by Teck Mining will have a destructive impact on trust at the work site and the employee-employer relationship.

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