The oil sands have long had a reputation for being a tough place to work. Employees, mostly male, are often bunked in work camps in the middle of nowhere, away from friends and family for weeks at a time.
Tales of drug and alcohol abuse have abounded for years. An entire mythology has been constructed around the belief that workers routinely drink and take drugs on the job, then resume operating some of the most dangerous equipment on the planet. But how real is that image?
Canada’s largest oil producer, Suncor Energy, believes the problem is significant. In July, 2012, the company tried to introduce random drug and alcohol testing at its operations north of Fort McMurray. Suncor’s ventures involve more than 13,000 employees, of whom 3,383 are unionized. Not surprisingly, the policy was grieved. Last week, an independent arbitration panel sided with the union. The company is appealing.
The decision was interesting for a couple of reasons. Firstly, it somewhat dispelled the myth that there is an out-of-control, drugs-and-alcohol culture at oil-sands work sites. At the same time, the ruling made clear this issue is not disappearing, and that while Canada will likely never go the route of the United States, where random testing is widespread, it could become more common here, as employers find language and terms that satisfy courts and tribunals.
In this case, Suncor did not.
The company lost for a few reasons, not the least of which was that it failed to demonstrate there was a significant problem at its operations. Suncor said that in the past seven years, three employees have been killed on the job who were later determined to have drugs or alcohol in their system. One man jumped to his death, another choked on his own vomit and a third had a truck fall on him. (Testing is allowed for employees who have been in any safety-related incident on the job.)
The company also had an RCMP official testify that between 2004 and 2013, there were 2,276 security incidents on the work sites. These primarily involved the police searching lodgings and finding alcohol and drugs, in some cases, but also finding the means to defeat post-incident testing. These included clean urine samples, urine testing kits and “Whizzinators” – products designed to deceitfully beat drug tests. (“Whizzinators”? Who knew?)
But what did the post-incident testing find? Over a nine-year period, there were just 14 positive tests for alcohol involving unionized employees who had been involved in some kind of safety-related incident on the job. Suncor said there were a total of 115 positive tests among all its employees – the vast majority of whom are non-unionized – for alcohol and drugs in its operations between January, 2009, and December, 2012.
The panel heard that for several years, the number of safety-related incidents on the job has been trending downward. Also, there was persuasive testimony offered by experts pointing to the unreliability of urine testing as a means of determining current drug and alcohol impairment.
As we say, Suncor is not giving up. The Supreme Court of Canada recently ruled in this area, rejecting a bid by Irving Pulp and Paper to introduce random urine testing in some of its operations, in part because the company failed to produce evidence that there was a widespread problem that was compromising worker safety. But the high court did not rule out indiscriminate testing as a matter of course.
In fact, it suggested there may be grounds for it under certain circumstances and appropriate terms. Privacy rights aren’t necessarily absolute. What needs to be measured is the benefits that accrue from random testing against the harm done to an employee’s rights – it’s a high bar.
The Alberta panel, meantime, suggested measures that Suncor might have adopted to make its proposed policy more acceptable, such as introducing it as a pilot project, agreeing to randomly test far less than 50 per cent of the work force and including guidelines to respect employee dignity.
The panel made the right call based on the facts as presented. But we haven’t heard the last of this.
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