Third Party Drug Policy

Posted by Johannes Schenk on January 30th, 2006 — Posted in Human Rights Law, Labour Law

It is often the case that an employer will enter into an arrangement with another entity that will require the employer’s workers to conform to other entity’s policy and workplace rules. What if those rules conflict or encroach upon matters covered by a collective agreement? What if those rules are discriminatory? How can those rules be challenged?

International Assn. of Machinists and Aerospace Workers, Local Lodge 99 v. Finning International Inc. , [2005] A.J. No. 1382, deals with the matter of a third party drug policy. Here Finning had entered into an equipment maintenance contract with Albian Sands. Albian Sands had a site access policy that required personnel going onto the site to be subject to drug testing. Finning did not have its own drug testing requirement at the time it entered into the Albian Sands arrangement. Finning employees were required by Finning to conform to the Albian Sands policy if they were going to work on the Albian Sands site.

The Court upheld an arbitration decision that determined that the matter was arbitrable insofar as Finning’s conduct relating to Albian Sands’ policy was a breach of the collective agreement. There was no jurisdiction to review the Albian Sands policy, despite that policy being referred to in Finning Job postings and Finning entering into a contract that referred to that policy.

The result is somewhat curious; arguably the Albian Sands policy might be incorpoarted into the collective agreement by reference allowing for a review of the policy at least with respect to the extent that Finning relied on it?

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