July 26, 2016
Author: Sarah E Smith, Associate
Can a company require its employees to undergo random drug and alcohol testing?
The answer to this question remains contentious, but a recent case out of Alberta has provided some guidance.
The Alberta Court of Queen’s Bench released its decision in Suncor Energy Inc. v Unifor Local 707A last month. The Court reviewed an earlier arbitration award, in which the arbitrator had found that Suncor could not justify its policy of randomly testing employees for alcohol and drugs.
Generally speaking, to justify such testing, an employer must have evidence that:
1. Employees to be tested work in a “safety sensitive” workplace;
2. There is a general workplace problem with drugs and alcohol; and
3. The employer has tried other means of resolving that general problem.
These requirements were set out by the Supreme Court of Canada in 2013 in the leading Irving Pulp & Paper case.
In the arbitration decision, the arbitrator held that Suncor failed to satisfy the second requirement. That is, it did not have enough evidence that there was a significant workplace problem with drugs and alcohol in the workplace.
Reviewing the arbitration decision, the Court found that the arbitrator was incorrect to require Suncor to prove that there was a “significant” problem. Instead, an employer must only show that there was a “general” problem – the problem does not necessarily need to be “significant.”
To demonstrate such a problem, employers must typically provide statistical evidence relating to, for example, the number of incidents of employee impairment while on-the-job. In the Suncor case, the employer was able to point to 2,276 alcohol and drug “security incidents” that were recorded between 2004 and 2013.
A key take-away of this case is that random testing may be permissible in safety-sensitive workplaces. However, in order to justify it, employers must lay the groundwork. They must collect the necessary evidence of a general workplace problem with drugs and alcohol. They must also try other means of addressing that problem. For example, employers can institute a comprehensive drug and alcohol policy, train employees on that policy; and provide employees with ways of seeking help through, for example, Employee Assistance programs, etc.
Another key take-away from the Suncor case is that the evidence can relate to all employees in the safety-sensitive workplace – not just unionized workers. This is another way in which the arbitrator had erred. He only considered the “security incident” statistics relating to employees in the union, and effectively the statistics involving non-union employees.
Ultimately, the Court quashed the arbitrator’s decision, and remitted it for a second arbitration in front of a fresh panel of arbitrators. The union, however, has announced its intention to appeal the Court’s decision. As it stands, however, random testing is still lawful – even for unionized employees – so long as employers can adequately justify it.
The 2016 open period ran from March 1st to April 30th this year. All of the province-wide ICI construction collective agreements expired at the end of this period, as well as all of the agreements covering residential construction work in Toronto. In addition, several significant accredited agreements that apply to other sectors, such as the Heavy Construction Association of Toronto (“HCAT”) and the Toronto and Area Road Builders Association (“TARBA”) agreements, expired at the end of April.
The expiry of these collective agreements provided construction trade unions with the chance to raid each other. The previous open period in 2013 involved widespread raiding attempts, including LIUNA Local 183 raiding trim companies in the Toronto area bound to the Carpenters’ Union Local 27. There were also raids involving very large roofing companies in 2013. Approximately a year and a half after the 2013 open period, during November of 2014, the Ontario Labour Relations Board held a town hall meeting in which it reported that very few construction employees ended up being represented by a different union as a result of the 2013 raids. This may have limited raid activity during the 2016 period, which saw much less raiding activity than the 2013 period.
Now that the 2016 open period is over, information on the settlements reached this year is starting to become available. It may be several months until the agreements themselves are distributed, but we know what the wage rates will be under many of the new agreements.
In Toronto’s residential construction sector, the increases in housing prices over the last few years fueled significant wage increases. In particular, the Residential Framing Contractors’ Association of Metropolitan Toronto and Vicinity, which negotiates the rates for framing contractors bound to Local 183, agreed to increase wage rates by 15% over three years after the workers went on strike in early May. The Residential Roofing Contractors’ Association of Metropolitan Toronto, which also negotiates with Local 183, agreed to increase wages by 11% over the term of the next collective agreement. The Interior Systems Contractors Association of Ontario went to arbitration with Local 1891 and Local 675 which resulted in a 13% and 20% increase to wages over the term of the collective agreement respectively. The Trim Association of Ontario went to arbitration with Carpenters’ Local 27 which resulted in a 15% increase in wages.
Other residential construction settlements were more modest, with the vast majority of the other residential agreements including wage increases of 5% to 8% over three years. The average for all of the residential agreements (that we know of) was just over 8%. However, several significant collective agreements, including the Carpenters’ Local 675 drywall agreement, have not yet been finalized.
Agreements in the ICI sector, which has not been directly affected by the jump in housing prices, were not as high. Almost all of the agreements ranged from 3.75% to 6.5% over three years, with an average of just over 4.5%. Increases under the Labourers’ ICI agreement will range from $1.70 (London) to $2.55 (Toronto formwork). The Carpenters settled for approximately 5.3% in Toronto and 3.75% in the rest of the province.
Looking at non-ICI agreements outside of the residential sector, HCAT settled for 9% over three years, with TARBA coming in at 7.5%. The Electrical Power Systems Construction Association reached 5-year agreements with a number of trades, including the Labourers, Operating Engineers and Plumbers. These agreements provided for 2.5% in the first year and 1.25% during all remaining years.
All of the strikes in the residential sector that have affected companies in Toronto over the past few months have now come to an end. The Carpenters’ Local 675 drywall agreement and the Trim Association agreement should be resolved in the coming weeks. It may take some time for the Ontario Labour Relations Board to resolve all of the raids and termination applications that were filed this year, but negotiations are winding down and many construction companies should now have a better idea of what their collective agreements will look like for the next three years.
This newsletter is not intended as legal advice. Any employer or organization seeking assistance should feel free to contact the authors, any member of Mathews, Dinsdale & Clark LLP.