The arbitral jurisprudence of labour relations has developed a
balancing test that deals with the unilateral imposition of
workplace rules by an employer, in the context of a collective
bargaining agreement. Specifically, with respect to alcohol
testing, the interest of the employer in safety must be balanced
with the privacy interest of the employee. Leaving aside the
obvious difficulties presented by the characterization of this
dichotomy (clearly safety in the workplace is in the employees'
interest just as much as the employer's), this test takes
minimal notice of the public's interest in the safe conduct of
a hazardous operation.
Given the difficulties posed by the collision of three interests
in this case: those of the employer, employee and the public, it is
clear to the outside observer that something ought to be done to
address the public's concerns. However, the dissenting Justices
were unwilling to expressly modify the applicable proportionality
test in cases that engage a considerable public interest, for the
reason expressed in the following quote from their decision:
But the fact that the public interest — not merely that of
employer and employee — is relevant in cases such as this one
may counsel a reassessment of the legislative choice to delegate
policy-making for drug and alcohol testing to the collective
bargaining process and to labour arbitrators. It is one thing for
employers and employees to negotiate a balance as they see fit with
respect to their own privacy and safety. It is a different matter,
however, to leave the public interest to the vicissitudes of the
bargaining table. Of course, it would be counterintuitive to
suggest that employees do not care for their own safety or, indeed,
the safety of their neighbours. The point is simply that employees,
employers, and the public may each strike the balance between
privacy and safety differently. And where disputes between
employers and employees emerge, it is not immediately apparent to
us why an adjudicative body that is expert in the resolution of
private labour disputes, but not in weighing broader considerations
concerning the safety and environmental interests of the public at
large, is best positioned to serve as the guardian of the public
interest. Indeed, nothing in the relevant legislation even
requires, let alone suggests, that labour arbitrators should assume
The Court could have taken a more interventionist role given the
admittedly compelling public policy concerns, although in the event
the dissenting Justices would have found that the arbitrator's
modification of the existing test was unreasonable because reasons
for the modification weren't given. As for the public interest,
they were content to point out that accounting for such interests
was the role of the legislature in this case.
Frankly, this result and reasoning (both in the majority and
dissent) is less than satisfying from a public policy perspective.
While the importance of the maintenance of harmonious labour
relations cannot be doubted, the Courts also have an important role
to play as protectors of the public interest, within the bounds of
the statutory framework created by the legislature. In this case,
it was not a legislative boundary but rather a jurisprudential one
that both sets of reasons refused to cross, although there is no
doubt that it was capable of being crossed. The majority did not
even acknowledge the public interest in the matter. Such an
interest was identified by the dissent, and yet was not
acknowledged as a sufficient basis to disturb the status quo. As a
result of this abdication, the public must wait for the
intervention of the legislature before its interests will be
protected in such labour disputes.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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