Suncor union wins round in battle over drug tests
Appeal court upholds injunction that temporarily halts random checks
The Court of Appeal of Alberta has upheld a lower court injunction that temporarily prevents random drug and alcohol testing of Suncor Energy employees while the union continues its legal fight against the program.
The ruling, released Tuesday morning, means 3,400 oilsands workers represented by the Communications, Energy and Paperworkers Union of Canada Local 707 will not be subject to random drug tests as their union and Suncor prepare for a full appeal of the injunction on Nov. 28.
Appeal court Justice Jack Watson concluded the possible negative effect on workers’ privacy was a greater concern than Suncor’s dire warnings that safety would be compromised.
“The evidence of Suncor as to harm does not persuade me that there is a real possibility that the enforcement of this drug and alcohol policy would avoid the tragic result the policy is aimed at stopping between now and Nov. 28, 2012,” Watson wrote. “On balance, for this comparatively short period, the negative effect on union members is visible, and the prospect of an actual increase in the margin of safety during such a short window of time is not enough to overcome that fact.”
Suncor already has safety measures at its work sites in the absence of the random drug testing, and employees might be more vigilant about possible intoxication because of the public attention the delay of the program has caused, Watson wrote.
On Oct. 12, Court of Queen’s Bench Justice Eric Macklin halted the program and said the injunction should stand until a labour arbitration board can rule on a grievance filed by the union about random testing.
Macklin said employees shouldn’t be subjected to the testing until an arbitration board has the chance to deem it reasonable. “Those employees would now be subject to invasive testing procedures such as taking of breath or body fluids, and are the ones who may be irreparably harmed if it is ultimately determined that the new policy is unreasonable,” he said.
Suncor lawyer Tom Wakeling argued to Watson the injunction put safety at risk each day it was in place. Ritu Khullar, a union lawyer, argued that a testing program announced in June, but not set to start until Oct. 15, can’t suddenly be a critical issue to implement as soon as possible. She told court that random drug tests can result in “psychological trauma.”
Suncor officials have said three of seven deaths at their work sites since 2000 involved workers under the influence of drugs or alcohol. The company has pushed ahead with random testing of non-union staff in management and executive positions.
Under the policy announced in June, the company plans to impose random alcohol and drug tests on workers in “safety-sensitive” or “specified” positions. It is a change from previous practice that limited drug screening to new employees or after a workplace incident, and then only if there was evidence to justify such a request.