Canadian Employment Law Today

CELT July 24 2013:celt 467.qxd 13-07-09 2:45 PM Page 8 July 24, 2013 8 incidents over 15 years was insufficient to show a problem ...continued from page 1 icant encroachment into employee privacy that was "out of proportion to any benefit." In reaching this decision, the New Brunswick Arbitration Board chose to follow a line of decisions in which random testing was upheld only where there was a demonstrable drug or alcohol problem in the workplace. According to the board, Irving's eight alcoholrelated incidents over 15 years were insufficient to demonstrate a "problem in the workplace". The arbitration decision was overturned, and ultimately appealed to the Supreme Court of Canada, which found the random testing policy to be unreasonable: "In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe," said the Supreme Court. "(Irving) exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use." workers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.). Broad implications for employers The decision from the Supreme Court could have broad implications, as it is considered a national test case for how far an employer can go when it comes to a worker's right to privacy. The case attracted numerous interveners, including the Canadian Civil Liberties Association, Canadian National Railway Company, Via Rail Canada, the Canadian Mining Association, and the Canadian Manufacturers and Exporters. Ultimately, whether random alcohol testing is justified will depend on whether an employer can demonstrate a workplace problem with alcohol use. What constitutes a significant enough problem remains unclear. What is clear is that random testing without evidence of an identifiable issue in the workplace will be considered an unreasonable infringement on employee privacy, even in safety sensitive positions. CELT Regulatory tools already exist ...continued from page 7 lize other regulatory tools already in existence. For example, the government could strictly enforce the provisions of the Income Tax Act that require employers to take the appropriate source deductions and remit them to the Canada Revenue Agency. Many employers of foreign workers fail to do so, as many employees who hold work permits wish to remain on foreign payrolls. Second, the government could have required that employers should have a minimum number of current Canadian employees before benefiting from the program. This would have ensured the employer would not be foreign worker dependent and Canadians have an opportunity to apply for the positions. Third, the government could have imposed a minimum revenue threshold before an employer could use the program. The proposed regulations also miss 8 For more information see: ■Communications, Energy and Paper- the mark in portraying temporary foreign workers as "victims" in a generalized fashion. While some foreign workers are the victims of abuse by unscrupulous employers — especially live-in caregivers and those working in the agriculture, construction or hospitality industries — the vast majority of employers abide by their obligations and provide good pay and excellent working conditions to all their employees, including foreign workers, assisting them to stay in the organization. In fact, many foreign workers enjoy higher pay than their Canadian counterparts because they have international qualifications and experience in sophisticated occupations. Many remain on work permits only for a brief period of time, until they can secure permanent residence. It can hardly be said these workers need protection by the government. It is naïve to think the government can force employers to run their busi- ABOUT THE AUTHORS Adrian Jakibchuk Gerald Griffiths Adrian Jakibchuk and Gerald Griffiths are lawyers with Sherrard Kuzz LLP, a management-side labour and employment law firm in Toronto. Adrian and Gerald can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or at www. sherrardkuzz.com. nesses in a manner contrary to their interests. If the authorities were concerned about the large number of temporary foreign workers in Canada, then they could impose meaningful fines on violators. Granting bureaucrats the power to enter business premises without a warrant is reminiscent of the tactics employed by security services in the former Eastern European totalitarian regimes and not in accordance with the core values guaranteed by the Canadian Charter of Rights and Freedoms and due process of law. CELT Sergio R. Karas is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada. He is Past Chair of the Ontario Bar Association Citizenship and Immigration Section, Past Chair of the International Bar Association Immigration and Nationality Committee, and Editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or karas@karas.ca. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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