I think, in the amendment to the Canada Labour Code that we're suggesting, it authorizes employers with workers in safety sensitive positions only to do random testing. Again, it is primarily for the purpose of deterrent, but also for detection, and there is a cost associated with that, as you point out.
I think employers may not all be happy to spend that kind of money. They may want to share that cost. That's permitted, if they're unionized, by negotiating a term in the collective agreement. It's unlikely, in my opinion, they'd ever get that agreement.
I think employers who are probably reluctant would be smaller employers with fewer resources. I think most employers, especially with dangerous jobs and safety sensitive positions, realize that preventing accidents is a huge, not only legal burden that they avoid, but also a huge cost burden. I think of the old saying that an ounce of prevention is worth pound of cure. I think most employers would likely—I can't speak for all of them or any of them in particular—embrace that additional cost if it was legally authorized to do it.
What is troubling for employers—and this is what many employers and employer associations have said to me—is that we think we have a pretty good case for random testing, especially after the TTC case, but we don't want to be in litigation for the next eight to 10 years. That's the risk. That's why a legislative framework, even if it's seen as a balanced and restrictive framework, with protections for privacy built in, absolutely.... I would point the committee back to the TTC decision. It very clearly sets out the TTC policy, and it has been judiciously approved, although that's being appealed.
Who knows where it will all end up legally? The point is, how many more accidents do you want to have in a dangerous workplace? How many do we as a society think we want to tolerate in balancing the prevention versus the privacy concerns?
The other point, simply—I didn't make it earlier, but it responds to your question of cost—is, even if the employer bears the full cost, union leadership has really ignored one fundamental problem. That is, they have in every legislation, federally and provincially, a duty of fair representation of all their union members, not just the member who's using drugs. Guess who gets hurt and killed? Union members by union members. There's a lack of leadership or accountability of the union leaders in saying that they are accountable for everybody, and they should encourage reduction of the idea of the use of impairing drugs or alcohol in the workplace. If deterrents through testing are helpful, let's work with employers for a better method to do that.
If there was a framework in the legislation, as we suggested, I think that would be a good start. That would allow employers to do that.