February 1 2018
This week, a senior arbitrator in British Columbia ruled that Tech Coal’s random drug and alcohol testing policy violated the collective agreement with the United Steelworkers and ordered the testing to stop. Here is a story from the CBC on the decision. This is the latest in a series of decisions ruling that random drug and/or alcohol testing policies interfered with employee privacy rights protected by collective agreements, including the 2013 decision of the Supreme Court of Canada in Irving Pulp & Paper.
As discussed in Chapter 43 of The Law of Work: Complete Edition (“The Collective Agreement”), labour arbitrators deal with these testing cases through the lens of the so-called “KVP Test”, which requires that rules promulgated by a unionized employer be “reasonable” in all of the circumstances. To meet this standard, employers must be able to demonstrate that there is a serious workplace problem related to drug and alcohol use and that there do not exist other means to address the problem that impinge less on employee privacy rights. Tech Coal was unable to demonstrate this and therefore their testing policy was struck down.
Here is Arbitrator Kenzie’s full decision.
And my thanks to the union’s lawyer, Rob Champagne, for proving Law of Work blog with his executive summary of the decision, which you can find here. I can’t describe the decision any clearer than this, so I will leave my post at that.