Canadian Labour Reporter

March 20, 2017

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS degrading" and told Rob Arm- strong, port captain, that random drug testing was illegal in Canada and he wouldn't submit to it. But Armstrong explained the company tried to work around the rules. "That's why they call it a medical examination," said Arm- strong to Chambers, adding Sea- span was doing it to "hand Shell their names." The contract Seaspan signed with Shell called for "periodic, independent medical examina- tions which include testing for alcohol and drug use" as well as "unannounced alcohol breatha- lyzer testing for impairment." The workers were to submit to an an- nual drug and alcohol test as well. Previously, the company gave its workers voluntary medical examinations that were in reality drug and alcohol tests, according to the collective agreement and accepted practice at the company. Seaspan employees were not adversely affected if they refused to take the previous test. But em- ployees who did not follow the newly-implemented procedure could no longer work on any Shell-rated vessels, according to a 2015 policy agreed to by Shell and Seaspan. "Failure to attend this required medical examination will result in you not being eligible to be crewed on any vessel that commonly works for, or may work for, Shell or Imperial Oil," said the letter. However, the company admit- ted no random testing was done on any employee because the company was treating that aspect as a guideline and Canadian law is clear that no random testing is allowed unless there is a ma- rine disaster, there is reasonable suspicion to believe a worker is impaired or the employee has a history of drug or alcohol abuse and is undergoing a rehabilitation program while remaining on the job. A final demand letter was sent Nov. 30, 2015, letter and Cham- bers again ignored it. As a result, he was denied work in the Vancouver harbour after Jan. 15, 2016, due to the proxim- ity of various Shell vessels. Mean- while, other officers who hadn't been tested continued to receive assignments. Chambers was offered work on the Fraser River, but since that involved more strenuous activity (specifically moving around vari- ous ladders), he advised manage- ment that a shoulder injury might make the river work impossible. A functional ability report was prepared on March 6 and it showed Chambers couldn't lift his arm above his shoulder. On March 11, he applied for weekly indemnity pay at the company's behest. But when asked during the in- demnity process if he was fit for work, he replied yes. He was refer- ring to harbour work (from which he was barred) not river work. The weekly indemnity applica- tion was denied because Cham- bers reported eligible for work. Once an employee applied for weekly indemnity, he was auto- matically blocked in receiving his regular pay, according to Virginie Vigeant, manager of employee re- lations. The union, Canadian Merchant Service Guild, grieved Chambers' treatment, arguing the employer breached Canadian law, the col- lective agreement and his privacy rights. An additional 16 other offi- cers were added to the submission and the union undertook a policy grievance on their behalf. Arbitrator upholds grievance Arbitrator Joan McEwen upheld the grievance and said the com- pany acted in an unfair manner by demanding captains submit to the random drug and alcohol testing. "Seaspan had no history of substance abuse problems. How- ever, because Seaspan valued its contract with Shell, it gave the appearance of compliance while, at the same time, balancing the constraints of Canadian law with Shell's wishes. Seaspan never implemented random testing, despite having (agreed) to do so," said McEwen. "At the same time, Shell chose — in full knowledge that the marine addendum was not being enforced in such a way as to ensure that the operators of vetted vessels were not impaired — not to insist upon compliance therewith." The company's insistence on calling them "medical examina- tions," which are specifically al- lowed for in the collective agree- ment, does not allow it to then conduct drug testing, said McEw- en. "Although the collective agree- ment permits 'medical exami- nations,' the arbitral consensus is that it cannot be construed as including — without reasonable cause — something as invasive as drug and alcohol testing." The company also did not act equitably in enacting such a policy. "Seaspan overstepped the bounds of reasonableness by at- tempting to enact a policy similar to those that have been rejected by judges and labour arbitrators across the country," said McEwen. And Chambers and the other 16 officers who were subjected to drug testing were subjected to an invasion of privacy, said McEwen. "I am further satisfied that the privacy rights of the affected offi- cers have been violated. The sanc- tity of those rights must be given precedence over any hypothetical concern regarding the potential loss of Shell business — particu- larly given the fact that Shell has continued its business relation- ship with Seaspan, undeterred by voluntary ship inspection pro- gram reports stating that the sub- ject testing is unlawful in Canada. The highly questionable commer- cial benefit to Seaspan is simply not proportional to the harm to the employees' privacy." McEwen ordered Seaspan to pay damages of $3,000 for each of the affected officers. Chambers was awarded $7,000 for his breach of privacy. Chambers was also ordered made whole for the period of Jan. 20, 2016, to July 20, 2016, which was estimated by the union at $55,700 in lost wages, one statuto- ry holiday, 1.24 lay days, pension contributions and vacation. Reference: Seaspan and Canadian Merchant Service Guild. Joan McE- wen — arbitrator. Sandra Banister for the employer. Chris Leenheer for the employee. Jan. 18, 2017. < British Columbia pg. 1 Company breached Canadian law, privacy rights: Union Photo: Modfos (Shutterstock)

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