Australia: Compulsory drug and alcohol testing on Victorian Government construction sites

Labour, Employment and Workplace Safety Alert
Last Updated: 15 February 2014
Article by Kathy M. Dalton, Sam Jackson and Jessamy Kenny

Victorian construction companies will be required to implement comprehensive drug and alcohol testing procedures in order to be eligible to tender for work from the Victorian Government, according to a statement released last week.

Victorian Premier Denis Napthine has announced that the Victorian Government will introduce amendments to the Implementation Guidelines to the Victorian Code of Practice for the Building Industry (Guidelines) in order to tackle dangerous work practices on Victorian construction sites.

In the statement, Premier Napthine said "Reports of illicit drug use and distribution on Victorian construction sites are widespread. The presence of intoxicated and drug affected workers on building sites presents a real and serious risk to the safety of hard working Victorians."

As a result, any employers seeking to tender for Victorian Government work from mid 2014 will be required to have a comprehensive drug and alcohol testing procedure in place. While the specific requirements to be included in the Guidelines have not yet been released, employers in the construction sector should begin preparing for these changes now.

Points to Consider in Implementing a Drug and Alcohol Testing Procedure

Employers and those who manage and control workplaces (including companies and individuals that engage contractors) are required to take all reasonably practicable steps to eliminate or minimise risks to health and safety arising from the conduct of their business. In order to meet these work health and safety obligations, many employers in high risk industries, such as the construction industry, already have comprehensive drug and alcohol policies in place, including testing regimes.

Regardless of whether drug and alcohol testing is already in place, employers should consider reviewing existing policies now in anticipation of the new requirements to be introduced in mid 2014.

The key elements of an effective drug and alcohol policy and testing regime include:

  • a clear and comprehensive policy that specifically sets out its intended scope and application, including who it applies to (employees, contractors, other workplace participants), the types of drugs it applies to and the consequences of breaching the policy
  • a testing regime that includes:
    • alcohol and drug testing of all new employees prior to commencing employment
    • random drug and alcohol testing
    • 'for cause' testing (ie testing after incidents or safety breaches).
  • information, instruction and training for all workers on the requirements of the policy, in particular the consequences of breaching the policy.

Employers must also ensure that the policy and testing regime complies with any applicable industrial instruments in place at the workplace, including enterprise agreements. For example, enterprise agreements often contain specific requirements regarding drug and alcohol testing and any new or amended policies may not comply with those requirements. Failure to comply with the terms of an enterprise agreement may lead to prosecution and the imposition of penalties (up to AUD51,000 per breach).

Employers must also ensure any new or amended policy complies with:

  • anti-discrimination legislation
  • privacy legislation.

Implementing Drug and Alcohol Policies and Testing Procedures

When implementing any new or amended policy, employers should:

  • consult with employees and contractors regarding the proposed policy (in accordance with any applicable award and/or enterprise agreement)
  • ensure the policy is distributed to all employees and contractors, and appropriate training is provided (including new worker induction and regular refresher training for existing workers)
  • apply the policy consistently across the business.

We will provide further updates when the Victorian Government announces the specific requirements to be included in the Guidelines.

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.

K&L Gates has been awarded a 2012 EOWA Employer of Choice for Women citation acknowledging our commitment to workplace diversity.

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