Move long time coming, but issue nowhere near settled: Experts
By: Sarah Dobson 02/05/2019|Canadian HR Reporter|Last Updated: 02/05/2019
After a seven-year battle, Suncor and Unifor have reached
an agreement around random drug testing at Fort McMurray operations.
Credit: Todd Korol (Reuters)
The internal email went out Nov. 29, 2018 — Suncor announced it had reached a settlement with Unifor Local 707A regarding alcohol and drug testing for workers in safety-sensitive positions.
That meant the company would proceed with random testing at operations in the Regional Municipality of Wood Buffalo, including Fort McMurray: “Suncor is pleased to move forward with what we believe will positively affect safety at our work sites in the region. We are committed to ensuring a workplace where everyone is fit for duty so we can all make it home safely.”
The move was a long time coming. It was back in 2012 when Suncor introduced such a policy, citing drug- and alcohol-related safety incidents at its operations.
Unifor disagreed, saying there was no evidence of a widespread problem and this was an infringement of privacy.
While a panel of arbitrators agreed with the union, the Alberta Court of Queen’s Bench sided with Suncor, saying random testing was permissible if the employer could establish there was a general problem with drug or alcohol use at the workplace, not just for unionized employees. It also said the testing was a bona fide requirement to ensure workplace safety.
The union — which represents about 3,800 Suncor workers — appealed the decision to the Alberta Court of Appeal, which upheld the Court of Queen’s Bench decision, so the union appealed that decision to the Supreme Court of Canada — while obtaining an interim injunction prohibiting Suncor from carrying out the testing.
But in June 2018, the Supreme Court denied Unifor’s appeal.
There are two key issues involved — safety and privacy, according to Loretta Bouwmeester, partner at Mathews, Dinsdale & Clark in Calgary.
“Essentially… this move, this negotiated resolution, took the wind out of the sails of those that would challenge it,” she said. “Now that one of the largest unions in the country said it’s not going to stand in the way of random testing, what impetus would there be for another union to do so? That’s why this is such a key decision.”
“It’s still not going to be common or acceptable in that many workplaces, but now it’s no longer completely remote either. Because before, if not Suncor, (then) who? The problem was if Suncor couldn’t meet the bar, it was highly questionable if anyone could.”
Random drug testing is a developing area and with the legalization of cannabis, more employers may decide to pursue such a program, said Hilary Page, labour and employment lawyer at Spring Law in Toronto.
“But it’s important to note that Suncor — they’re in Fort McMurray, they’re in Alberta — and that’s probably one of the most safety-sensitive worksites out there, so it’s a bit of unique beast.”
Suncor’s decision is a good step, said Kelsey Orth, a partner at Crawford Chondon & Partners in Brampton, Ont.
“It’s a reasonable proposition. They want to address safety and the union’s not standing in their way in that regard... But I think we’ll see a few things still to be ironed out with respect to how that policy comes into play and how it’s used.”
Union stands down — for now
The concerns around random testing that existed before are still there, but it was better to find a compromise with Suncor than draw out the legal battle, said Scott Doherty, executive assistant to the national president of Unifor.
“We came up with an agreement that both parties could live with… It was not in the sense that we gave up on the fact that our members have rights and we have concerns around random drug testing and whether or not it’s effectively controlling safety issues,” he said.
“This is about addressing an individual issue at one facility. We have lots of manufacturing in other industries where there isn’t random testing and we would fight random testing.”
The union recognized there have been serious safety issues in Fort McMurray for quite some time, said Doherty.
“Circumstances have changed from when we originally were fighting random drug testing to today, and you have to be realistic about that,” he said. “We may at some point in time have to take on that fight again. We’re hoping that we don’t have to, but we’re not prepared to just give a carte blanche to Suncor either.”
“It’s our hope that random testing isn’t going to happen at Suncor forever — I think it’s Suncor’s hope as well.”
As part of the agreement with Suncor (which did not respond to requests for an interview), there will be meetings on a regular basis to discuss issues and come up with compromises or reasonable decisions on how to proceed, said Doherty.
“There’s definitely going to be some legal challenges both within the workplace but also outside the workplace when it comes to the legalization of cannabis, but we think we have an opportunity at Suncor to continue to have conversations with them.”
Click here to read the full article......Article written by:Sarah Dobson
Article updated on: Feb 5, 2019 HR Reporter Canada
Article spotted by: Louise Burden
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