On 7 October 2011, the Full Bench of Fair Work Australia handed
down its decision in Wagstaff Piling Pty Ltd; Theiss Pty Ltd v
Construction, Forestry, Mining and Energy Union  FWAFB
6892. In its decision, the Full Bench disagreed with findings
of the Victorian Industry Disputes Board and Commissioner Blair of
Fair Work Australia, and determined that the drug and alcohol
policy contained in the relevant enterprise agreement did not
prevent the implementation of a mandatory drug and alcohol testing
regime, despite the fact that the enterprise agreement made no
reference to drug and alcohol testing.
The facts of the case involved numerous workers who were
subcontracted by Wagstaff Piling to Theiss, who was the principal
contractor for the development of a major highway. Theiss had a
comprehensive Fitness for Work Policy (the Fitness Policy), which
included requirements for monthly random mandatory drug and alcohol
testing of its employees and subcontractors. Upon engagement,
Wagstaff agreed to ensure that its workers would abide by all
occupational health and safety requirements issued by Theiss. This
meant that Wagstaff agreed that its workers would abide by the
mandatory random drug and alcohol testing as per the Fitness
In March of 2011, the CFMEU gave notice that Wagstaff's
workers would not cooperate with the testing announced for that
month. Theiss and Wagstaff regarded this refusal to cooperate as
prohibited industrial action.
In accordance with the dispute resolution clause in the relevant
Theiss enterprise agreement (the Agreement), the CFMEU advised the
Victorian Building Industry Disputes Panel (the Panel) of the
dispute. In its submissions, the CFMEU contended that the action
did not constitute prohibited industrial action because the testing
procedures were not permitted by the Agreement, which required
compliance with the Victorian Building Industry Alcohol and Other
Drugs Policy (VBIAOD Policy). As the VBIAOD Policy did not provide
for mandatory drug testing, the procedures in the Policy were in
conflict with the Agreement and not enforceable. The Panel agreed
with the CFMEU's proposition.
Wagstaff appealed the decision of the Panel to Fair Work
Australia. At first instance, Commissioner Blair effectively
affirmed the Panel's decision, noting that because the
Agreement and the VBIAOD Policy were silent on the issue of
mandatory testing, the Agreement could not be interpreted in a way
which would allow Theiss to apply its own drug and alcohol testing
regime inconsistently with the Agreement and the VBIAOD Policy.
On appeal, Senior Deputy President O'Callaghan, Deputy
President Ives and Commissioner Gay agreed that the Agreement and
the VBIAOD Policy contained no express entitlement to conduct
compulsory drug and alcohol testing. However, the Full Bench
considered that the VBIAOD Policy or the Agreement did not operate
in a way that limited or prohibited a drug and alcohol testing
regime to exist as a lawful direction by an employer to its
employees or to those on site. The Full Bench's reasoning
in this case was that, given that the Agreement was silent on the
issue, and the VBIAOD Policy clearly endorsed a cooperative and
collective approach in the management of drug and alcohol issues, a
testing regime could therefore be implemented as a cooperative and
This ruling has been identified as a landmark decision for the
The CFMEU is currently seeking legal advice with a view to
appeal the Full Bench's decision of the Federal Court. The
union maintains that the VBIAOD Policy does not permit random drug
and alcohol testing. The union has sent "safety notices"
to union organisers informing them that the Full Bench's
decision does not mean that mandatory random drug and alcohol
testing can be introduced without union consultation, arguing that
"all employers have a legal obligation to fully consult with
the CFEMU OHS rep [sic] before any changes" are made.
What does this decision mean for employers?
Fair Work Australia acknowledges that a direction to submit to
drug and alcohol testing may be lawful and reasonable in the
circumstances, particularly in the context of high risk
This case supports the proposition that employers may legally
direct their employees and subcontractors to undergo mandatory drug
and alcohol testing in high risk industries, despite the silence of
any relevant enterprise agreement on the issue.
Employers should ensure that all directions issued to employees
and subcontractors are lawful and reasonable, within the scope of
the employment contract, and not contrary to any applicable
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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