December 10, 2012

Arbitrator to rule on drug test grievance

RICHARD GILBERT

staff writer

An arbitrator has been appointed to mediate a grievance filed by a construction union over random drug testing of Suncor employees in Fort McMurray, after the Alberta Court of Appeal upheld an injunction to temporarily stop the practice.

“The fact that a discussion is being undertaken means our democratic system is working, before decisions are made, which is the most important thing to me,” said Roland Lefort, president of the Communications Energy and Paperworkers (CEP) Local 707, which represents 3,500 workers at Suncor’s oilsands operations in Fort McMurray. “The democratic process has come to life.”

Mediation Services in Alberta has selected Tom Hodges as the arbitrator in a disagreement between the CEP and Suncor.

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

The two-year initiative, which was scheduled to begin on Oct. 15, includes random workplace drug and alcohol testing for union members and contractors working in safety-sensitive or specified positions.

However, the Alberta Court of Appeal made a decision on Nov. 28, in which two of three judges on a panel upheld an injunction that prohibits Suncor from testing employees without cause.

Court of Queen’s Bench Justice Myra Bielby, who spoke for the majority opinion, said Suncor’s plan for random drug testing of its employees was a significant breach of worker’s rights.

“We still have major concerns about safety,” said Lefort.

“Unfortunately, I had to drag the issue into court to make my point, but we are not trying to discredit the company. We are just challenging them on the implementation of random drug testing. Someone has led the company to believe that it would make a difference. We disagree.”

The ruling means random drug testing can’t take place before the grievance goes through arbitration under the procedure in the collective agreement.

Hodges will be the arbitrator in hearings that are scheduled to take place on Dec. 10, 11 and 12.

The CEP union sought an injunction in the Alberta Court of Queen’s Bench on Oct. 12, because Suncor was too slow to agree on an arbitrator.

As a result, Justice Eric Macklin granted a temporary injunction that was requested by the union over concerns about worker privacy.

According to court documents, three fatalities at Suncor’s plant out of the seven that have occurred since 2000 involved workers who died while under the influence of alcohol or drugs.

In addition, Suncor reported that between May 28, 2010 and June 30, 2012, there were more than 100 reported security incidents involving alcohol or drugs at its operations.

Justice Macklin was satisfied that Suncor is implementing the new policy to minimize the risks associated with the use of alcohol and drugs in the workplace.

However, courts have ruled workplace safety measures must consider the privacy, bodily integrity and dignity of employees, in particular, employees who are innocent of any wrongdoing.

In addition, Macklin said there is insufficient evidence in this case to show that random testing may be sufficient to reduce risk because Suncor is not seeking to test on the basis of reasonable grounds to believe that a person may be under the influence of alcohol or drugs.

The union has agreed to certain types of drug testing in its collective agreement, including pre-employment screening and with-cause drug testing.

Given these facts, Justice Macklin concluded the grievance must be considered as soon as possible by an arbitration board.

“If the new policy is found to be reasonable, then the safety of the workplace, all of its employees and the environment mandate that the new policy be implemented as soon as possible,” he said.

“Alternatively, if the new policy is found to be unreasonable, then Suncor must know that as soon as possible so as to take whatever other steps it feels necessary to ensure and enhance workplace safety.”

Suncor lawyers tried to overturn Justice Macklin’s decision to grant an injunction, by arguing that the judge made an error in law.

In a decision in the Court of Appeal of Alberta on Oct. 17, Justice Jack Watson rejected this argument and said Macklin did not overstep his jurisdiction by pushing the parties to seek arbitration as soon as possible.

“We are suggesting that the future of DARRPP will be determined by the decision of arbitration as well as a decision of the Supreme Court,” said Lefort.

“These decisions will shape random drug testing in Canada, if allowed.”

The Supreme Court of Canada heard a similar case on Dec. 7.

It involves the CEP union and Irving Pulp and Paper in New Brunswick, which started a program in 2006 to have mandatory breathalyzer tests to detect alcohol use in the workplace.

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