Canadian employers who plan to unilaterally impose stiffer drug and alcohol testing requirements on unionized workers should take note of a March 2009 Alberta Court of Appeal decision, United Assn. Of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co.
In 2004, the employer, Bantrel, began a new contract to construct a diesel desulphurization unit at a Petro-Canada site. Around the same time, Petro-Canada began requiring all employees to submit to pre-access drug and alcohol testing. Bantrel unsuccessfully attempted to exempt its 200 employees that were already working on the site and agreed to impose the Petro-Canada policy to avoid losing the contract. Bantrel notified its employees about the testing in October 2004 and started laying off any employees who failed to comply in January 2005. Several unions, with similar collective agreements, filed grievances in December of 2004.
Each of the collective agreements incorporates the “2001 Canadian Model for Providing a Safe Workplace”, an industry standard published by the Construction Owners Association of Alberta. Although the 2001 Model permits testing for cause, it does not require any pre-employment or general pre-site access testing. The union’s position was that no testing should take place outside of the contemplation of the collective agreements. The employer relied on its management rights, the fact that the site was safety sensitive, and the fact that the 2001 Model contemplated employer-specific requirements and did not explicitly rule out the implementation of a stricter policy.
Where there is a complete drug and alcohol testing policy contained within a collective agreement, the law clearly indicates that the collective agreement is to be adhered to. Where there is no policy in the collective agreement, or, as alleged in this case, an incomplete policy, it is arguable that a unilateral policy amendment may be permissible so long as it: (a) does not contradict the collective agreement; (b) balances the employer’s and employees’ interests; and (c) is reasonable. The issue in Bantrel is whether the collective agreements contained a complete drug and alcohol testing policy such that it was not open to management to impose a new policy on the union without negotiation.
An arbitration panel ultimately agreed with the employer that the testing was justifiable in the context. The panel viewed the 2001 Model as an incomplete code which contemplated employer-specific needs and testing as a condition of employment in some circumstances. This decision was upheld by the Alberta Queen’s Bench.
The decisions were overturned by the Court of Appeal. According to the Court of Appeal, the panel made an error in interpreting the 2001 Model. The error was the acceptance, of an overbroad interpretation of testing as a “condition of employment”. The panel took this to govern current employees who wish to access a job site. However, the Court of Appeal notes that the reference to a “condition of employment” in the 2001 Model only contemplates pre-employment testing and does not apply to current employees.
The Court of Appeal also relied on the implied exclusion rule, which stipulates that to include one term in the collective agreement necessarily implies the exclusion all other terms. Since the 2001 Model only considered pre-employment testing, it excluded pre-site access testing.
The Court of Appeal also dismissed the utility of another clause of the collective agreements which provides that the “parties will cooperate with clients who institute pre-access drug and alcohol testing”. The Court of Appeal noted that the term “cooperate” does not detract from the union’s right and ability to negotiate the future terms of any required testing.
In Bantrel, the Alberta Court of Appeal has reinforced the idea that employers must stay within their collective agreements when seeking to impose new policies on employees. Despite a legitimate business case and arguable safety rationale in working at a sensitive site, the Court sent a clear signal that amendments to policy must occur within the collective agreement framework.
Interestingly, and perhaps as a result of this incident, the 2001 Model was amended to specifically provide for pre-access drug and alcohol testing.
United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., [2009] A.J. No. 216 (C.A.)
Professional Pointer: The best approach for employers who wish to require drug and alcohol testing is to expressly permit such testing in the collective agreement and amend the agreement in consultation with the union as necessary. Further, employers should be hesitant in incorporating boiler plate industry standard guidelines in their collective agreements without first scrutinizing the content and implications of such guidelines.
