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Supreme Court says Irving pulp mill's random testing policy has 'severe' impact on privacy

The Supreme Court of Canada has overturned a company's right to impose mandatory, random alcohol testing on its unionized workers in a dangerous workplace.

In a 6-3 decision released on Friday, the court ruled the policy unilaterally adopted by Irving Pulp and Paper Ltd. in Saint John in 2006 for employees in safety sensitive positions is unreasonable.

The Supreme Court of Canada says random alcohol testing by an employer is only justified in certain circumstances.

A dangerous workplace is not automatic justification for random testing, the court ruled in the case, which dealt narrowly with unionized workers and management's ability to balance privacy rights with the need for safety in dangerous workplaces.

The decision says dangerousness of a workplace only justifies testing particular employees in certain circumstances:

• Where there are reasonable grounds to believe an employee was impaired while on duty.
• Where an employee was directly involved in a workplace accident or significant incident.
• Where the employee returns to work after treatment for substance abuse.

"It has never, to my knowledge, been held to justify random testing, even in the case of 'highly safety sensitive' or 'inherently dangerous' workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105 L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM Agri-Industries), in the absence of a demonstrated problem with alcohol use in that workplace."

The case stems from a 2006 grievance filed by Local 30 of the Communications, Energy and Paperworkers Union of Canada (CEP), at the Irving mill.

"We respect the decision," Irving spokeswoman Mary Keith said in a brief emailed statement.

"We will be reviewing the decision and have no further comment at this time," she said.

"Our focus has and continues to be the safety of our co-workers and communities where we have operations."

Could affect Alberta Suncor case

David Coles, the national president of CEP, said the ruling is "very clear" and believes it will help resolve a similar dispute in Alberta.

Suncor Energy is trying to bring in a random drug and alcohol testing program for employees and contractors at its oilsands operations in Fort McMurray.

"As clear as it is written... if someone was to have random drug testing, they would have a fairly high bar to cross before they would be able to, I believe, get it past the judiciary because there just isn't any evidence at all that it affects the outcome at work," said Coles.

"The fundamental issue here is there's absolutely no evidence presented here or anywhere else that random drug testing increases the safety in any operation," he said.

"So it turns out to be nothing more than an invasion of ones' privacy with no net gain for the consequence of safety."

Coles said the union is opposed to anyone using any kind of alcohol or drug at work, but contends substance abuse is a societal issue that must be dealt with, not a workplace issue to be legislated.

"Stop spending so much money trying to beat on blue collar workers and get to the problem," he said. "You don't see random drug testing in downtown Toronto in the big white towers... And please don't tell me that the incidence of drug and alcohol abuse is any different in Fort McMurray than it is on Bay Street."

The Alberta Federation of Labour, which was an intervener in the Irving case, also believes the decision could influence the Suncor arbitration, said president Gil McGowan.

"Employers simply have to demonstrate there's a problem with drug abuse or alcohol abuse in the workplace before they can move ahead with these kind of arbitrary random drug testing regimes, but it's clear the employer didn't prove that and we would argue that they haven't been able to prove that in Suncor either. So we're very pleased with the decision."

The court found the Irving policy had been properly rejected by a labour arbitration board.

"In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe," the decision states.

Irving "exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use."

The court awarded "costs throughout" to CEP.

Daniel Leger, a lawyer representing the union, declined to discuss the amount involved, citing attorney-client privilege.

But he said the judgment will allow the union to recoup some of its legal costs in the seven-year dispute.

Broad implications

The decision from the top court could have broad implications. It is considered a national test case for how far an employer can go when it comes to a worker's right to privacy.

It attracted numerous interveners, including the Canadian Civil Liberties Association, the Canadian National Railway Company, Via Rail Canada, the Canadian Mining Association, and the Canadian Manufacturers and Exporters (CME), which describes itself as the largest industry and trade association.

Ian Howcroft, vice-president for the Ontario division of the CME, said it's "unfortunate" the Supreme Court did not uphold a company's right to do random testing.

But "it's encouraging the judgment did not close the door completely and companies may still be able to do some testing in certain circumstances," Howcroft said.

He maintains companies should have everything at their disposal to ensure the workplace is free of hazards.

Lawyer argues reasonable cause needed for testing

Irving Pulp and Paper Mill in Saint John had unilaterally adopted a policy of mandatory random alcohol testing for employees in safety-sensitive positions in 2006.

The Supreme Court heard arguments last December, but reserved its decision.

Fredericton-based lawyer David Mombourquette, who was representing the CEP, had argued a breathalyzer is an involuntary submission of bodily fluids and amounts to a high level of random personal intrusion.

Testing should only be permitted when there is reasonable cause, such as slurred speech or the smell of alcohol, he had said.

But the Irving company's lead counsel, Neil Finkelstein, had argued the policy is justified because the mill is full of hazardous chemicals, flammable substances, heavy rotating equipment, a 13,000-volt electrical system and a $350-million high-pressure boiler.

In addition, the mill had a history of drinking being a problem, he had said, citing eight documented incidents between 1991 and 2006, when the random testing policy was implemented.

In March of that year, millwright Perley Dey's name was randomly selected by a computer program to take a breathalyzer test.

Dey said he took the test because he was afraid of losing his job. The test showed a blood alcohol level of zero.

But Dey, who describes himself as a religious man who doesn't drink, said the test was humiliating and unfair.

An arbitration board allowed the grievance, ruling Irving had failed to establish a need for the policy. But a New Brunswick Court of Queen's Bench judge reversed that decision, which the union appealed.

The New Brunswick Court of Appeal dismissed the grievance in 2011, ruling the mill qualifies as an inherently dangerous workplace. The union appealed that decision to the Supreme Court of Canada.

CBC News, Friday, June 14, 2013

 

Decision reaffirms union’s stance against random drug and alcohol testing

EDMONTON – Today’s Supreme Court ruling is a major victory in the fight against random and arbitrary privacy violations through drug and alcohol testing.

The case, which stems from a grievance filed by Communications Energy and Paperworkers (CEP) Local 30 in New Brunswick, has implications to similar cases in Alberta’s oil sands. Labour leaders hailed the decision as a victory for human rights.

“This decision is in line with years of jurisprudence, makes sense, and is in the interest of Canadians. Employers can’t arbitrarily introduce a random drug or alcohol testing regime by declaring a workplace “dangerous” without proving that there’s a problem,” Alberta Federation of Labour president Gil McGowan 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 worker and strip them of their privacy without proving there’s one.”

In 2006, CEP Local 30 challenged Irving Pulp and Paper Inc.’s decision to impose random workplace drug and alcohol testing without first proving that there was a problem. In a 6-3 decision released on Friday, the Supreme Court of Canada ruled in favour of CEP’s position that the impact on employee privacy was too severe to justify random testing.

The Court ruled that the dangerousness of a workplace doesn’t give an employer free reign to run roughshod over employee’s rights.

“A unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace,” Justice Abella wrote. “This is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.”

CEP local 30 from New Brunswick brought the case forward, we were interveners on the case, as was CEP 707 representing Suncor workers, because the Alberta Federation of Labour and affiliated unions believe in a worker’s right to privacy.

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MEDIA CONTACTS:
Gil McGowan, President, Alberta Federation of Labour at 780-218-9888 (cell)
Olav Rokne, Communications Director, Alberta Federation of Labour at 780-289-6528 (cell) or via email [email protected].

Suncor Energy's attempt to randomly test thousands of its oilsands workers for drugs and alcohol is back under scrutiny as proceedings began again this week.

Arguments are being heard in a labour arbitration in Calgary, with proceedings between Suncor Energy Inc. and the Communications, Energy, and Paperworkers union Local 707 that represents 3,4000 workers, the Globe and Mail reports.

Last November, Alberta's top court dismissed an appeal by Suncor Energy over its plan to randomly test thousands of its oilsands workers for drugs and alcohol.

Justice Jean Cote spoke for the majority at the time, calling Suncor's plans "a significant breach of worker's rights," while upholding an injunction that would prohibit the company from testing employees without cause.

New Brunswick's Irving Pulp and Paper is also looking to randomly test employees for alcohol as its mill operations , with the case reaching the Supreme Court of Canada, according to the CBC.

The outcome of these high-profile cases may determine if such testing expands to other workplaces in Canada, CBC adds.

Substance abuse among workers is already a concern in Alberta's oil and gas industry, as workers are exposed to heavy machinery. According to the Globe and Mail, Alberta's courts have been much more likely to allow drug and alcohol testing than in Canada's Eastern and Maritime provinces.

The union argued last year that random testing is an affront to basic human rights, and the Alberta Federation of Labour called the court decision a victory.

"Employers like drug testing programs because they give the impression that something decisive is being done about safety," Federation president Gil McGowan said in a news release at the time.

"But these programs don't improve safety. Employers know that, so it's little more than very expensive public relations."

Suncor spokeswoman Sneh Seetal said that the oilsands giant was disappointed in the court's ruling.

"We know alcohol and drugs are a pressing safety concern at our Wood Buffalo sites and we will present evidence to support this during the arbitration process."

She said three of the seven workers who died while on the job at Suncor's site since 2000 were under the influence of alcohol or drugs at the time.

"Our view is one fatality is too many."

The union has agreed to certain types of drug testing in its collective agreement, including pre-employment screening and with-cause drug testing, and says there is no evidence that random drug testing makes workplaces safer.

The Huffington Post Alberta, Thursday, Jan. 3, 2013
With files from CP

Injunction against drug testing upheld by Court of Queen's Bench

Edmonton – The Alberta Federation of Labour (AFL) is calling a ruling that protects workers in the oil sands from non-consensual drug testing a win for human rights.

In a decision on Wednesday, Nov. 28, Court of Queen's Bench Justice Myra Bielby, spoke for the majority opinion and called Suncor's plans for drug testing 'a significant breach of worker's rights,' while upholding an injunction that will prohibit the company from testing employees without cause.

"Employers like drug testing programs because they give the impression that something decisive is being done about safety," AFL president Gil McGowan said. "But these programs don't improve safety. Employers know that, so it's little more than very expensive public relations."

Lawyers for Suncor sought to overturn the injunction so the energy company could move ahead with a random drug testing program that was halted by a Court of Queen's Bench injunction until an arbitration board can deal with a grievance filed by Communications Energy and Paperworkers Local 707, the union that represents 3,400 workers at Suncor's oil sands operations.

"Imposing a regime of random drug testing on an entire workforce is an unwarranted invasion of privacy," McGowan said. "It's invasive, it's demeaning, and it says to workers 'none of you can be trusted.'"

The union has agreed to certain types of drug testing in its collective agreement, including pre-employment screening and with-cause drug testing. As a partner in workplace safety, both CEP 707 and the AFL are in favour of programs that would prevent accidents. There is no evidence, however, that random drug testing makes workplaces safer.

"The evidence suggests that random drug testing can actually make things worse by encouraging people to move from soft drugs, like marijuana that stay in your system for up to a month, to hard drugs like cocaine and crystal meth that are metabolized much more quickly," McGowan said.

This is the second appeal of the injunction that Suncor has lost. In October, the Alberta Court of Appeal ruled that random drug and alcohol testing could not take place until after the Labour Board rules on CEP 707's objections to the program.

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MEDIA CONTACTS:

Gil McGowan, President, Alberta Federation of Labour at 780-218-9888 (cell)

Olav Rokne, AFL Communications Director at 780-289-6528 (cell) or via email [email protected].

The Canadian Press

Published Wednesday, November 28, 2012 7:26PM EST

EDMONTON -- Alberta's top court has dismissed an appeal by Suncor Energy over its plan to randomly test thousands of its oilsands workers for drugs and alcohol.

Last October, the Communications, Energy and Paperworkers union won an injunction against the testing and a judge ordered the matter be settled by arbitration.

Suncor (TSX:SU) took the matter to the Alberta Court of Appeal, where two of three judges on a panel agreed to dismiss the case on Wednesday.

Photos

A Suncor oilsands mine facility seen from the air near Fort McMurray, Alta., Monday, Sept. 19, 2011. (Jeff McIntosh / THE CANADIAN PRESS)

A Suncor oilsands mine facility seen from the air near Fort McMurray, Alta., Monday, Sept. 19, 2011. (Jeff McIntosh / THE CANADIAN PRESS)

Justice Jean Cote spoke for the majority opinion and called Suncor's plans for drug testing "a significant breach of worker's rights" while upholding an injunction that will prohibit the company from testing employees without cause.

The union had argued random testing is an affront to basic human rights, and the Alberta Federation of Labour called the court decision a victory.

"Employers like drug testing programs because they give the impression that something decisive is being done about safety," Federation president Gil McGowan said in a news release.

"But these programs don't improve safety. Employers know that, so it's little more than very expensive public relations."

Suncor spokeswoman Sneh Seetal (Suh-nay) (SEE-tahl) said Wednesday night that the oilsands giant is disappointed in the court's ruling.

"We know alcohol and drugs are a pressing safety concern at our Wood Buffalo sites and we will present evidence to support this during the arbitration process."

She said three of the seven workers who died while on the job at Suncor's site since 2000 were under the influence of alcohol or drugs at the time.

"Our view is one fatality is too many."

She said it is too early to say if Suncor will appeal the decision to the Supreme Court.

Suncor is obligated to provide a safe work site for all of their employees, contractors and visitors and the company is doing what it feels is necessary to fulfil that commitment, Seetal said.

"Random testing is one component of an already comprehensive program that includes other testing, training, educational initiatives and support for those who need assistance. The goal of that program is to make sure our folks go home safely at the end of their shifts."

The union has agreed to certain types of drug testing in its collective agreement, including pre-employment screening and with-cause drug testing, and says there is no evidence that random drug testing makes workplaces safer.

A similar case involving the same union and Irving Pulp and Paper Ltd. in New Brunswick is to go before the Supreme Court of Canada on Dec. 7.

CTV News, Wednesday, Nov 28 2012

Alberta's Court of Appeal has struck down a plan by energy company Suncor to randomly test thousands of workers for drugs and alcohol.

The court said in the decision that the plan would seriously breach workers' rights.

The Alberta Federation of Labour calls the decision a big victory, saying that random testing doesn't always improve safety.

There is no information on whether or not Suncor will try to go the Supreme Court to appeal the ruling.

CTV News Calgary, Nov 29 2012

Workplace Drug and Alcohol Testing Policy Statement (Oct 2006)

The issue of drug and alcohol testing in the workplace is an evolving area of employment law. It is also a fundamental issue of worker rights versus limit to employer control over its employees. ... Given the changing nature of the issue, the AFL felt it was time to update its policy statement from Convention 2001.