- What obligations do employers hold to employees in terms of protecting them from other intoxicated workers?
Persons Conducting Business or Undertaking (PCBUs) have an onerous duty to ensure, so far as is reasonably practicable, the health and safety of workers and others in their workplace under WHS laws. This includes the provision of a safe work environment, information, instruction, training and supervision in relation to WHS that extends to being under the influence of drugs or alcohol at work. Workers also have an obligation under WHS laws to protect their own health safety and that of others in the workplace. As such, showing up to work under the influence may be a breach by the worker of their WHS obligations as it is of the PCBU that failed to prevent it.
It is also considered "serious misconduct" justifying summary termination of employment for the purpose of the Fair Work Act and associated Regulation to show up to work "intoxicated". A worker is considered to be "intoxicated" if his or her faculties are so impaired that they cannot be entrusted with their usual duties.
- In this context, what are 'reasonably practicable steps' to protect the health and safety of workers?
A drug and alcohol policy should generally be introduced to regulate, if not eliminate, the use of drugs and alcohol in the workplace. This policy should be based on a risk assessment considering the risks associated with drugs and alcohol in the particular workplace that it relates to. This assessment will dictate what testing, if any, is reasonable and necessary in the circumstances.
- Are there any issues employers must be aware of when drafting this?
Whilst organisations, courts and industrial tribunals seem to accept D&A testing is generally an intrusion into an individual's private life that blurs the boundaries between home and work, it is accepted as the lesser evil if testing is necessary to ensure the health and safety of workers and others in the workplace. Clearly, this threshold issue depends on the nature of the workplace and the level of influence that poses a risk such that it should be considered on a case-by-case basis.
- What's the current situation in regards to drug testing in the workplace?
It was established the Fair Work Commission Full Bench in the case of Briggs v AWH Pty Ltd (2013) that a refusal of an employee to undergo D&A testing in circumstances where the employee's employment contract referred to and required compliance with the D&A policy was a refusal to obey by a lawful and reasonable direction justifying termination of employment. It is therefore important to assess the risks associated with drug and alcohol use in the workplace, document a policy that seeks to eliminate those risks, require compliance with the policy and procedure as a term of the employment agreement and consistently enforce non-compliance.
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