Australia: Employers on a high after positive decisions: how to implement effective drug and alcohol testing

Clayton Utz Insights
Last Updated: 26 February 2015
Article by Shae McCartney and Patrick Lawler

Key Points:

Company drug and alcohol policies should be reviewed to ensure they are effective in managing risk while balancing the individual rights of employees. Clear, reasonable and express policies, consistently applied, will be enforceable.

A series of recent decisions by the Fair Work Commission have recognised the legitimacy of drug and alcohol policies and procedures in removing safety risks, and the right of employers to take disciplinary action for drug use, even if there's no actual evidence of impairment. However, there are steps that your business should take to ensure its drug and alcohol policies and procedures are defensible and effectively managing safety risks.

Rationale for drug and alcohol policies and procedures

The statutory duties owed by employers to their workers and to other persons who can be affected by the employer's business or undertaking (such as the general public) provide a defensible basis for an employer to introduce drug and alcohol policies and procedures, including random testing. This is particularly so in high-risk industries such as mining, building and construction, and petroleum and gas.

However, an employee's right to privacy must also be recognised and appropriately balanced in developing policies and procedures.

Therefore, employers should consider carefully the most appropriate method for their workplace to ensure safety, and the drafting of any provisions regarding testing and fitness for work

There continues to be debate in relation to the efficacy of various testing methods, in particular, urine testing and oral fluid testing. Further complicating the debate is the emergence of synthetic cannabinoids (such as Kronic) which can affect employees' fitness for work, but may not show up in establishing testing procedures.

Commission supports decisions of employers regarding drug and alcohol policies

In a decision late last year (DP World Brisbane v MUA [2014] FWCFB 7889), the Full Bench overturned a first instance decision in which DP Booth had found that the mine's enterprise agreement effectively prohibited the use of urine testing. In coming to her decision DP Booth had considered and evaluated the merits of urine testing in identifying impairment.

The Full Bench found that the enterprise agreement did not preclude urine testing, including because urine testing was an established part of DP World's site-specific testing arrangements and no employees raised concerns regarding urine testing during consultation.

Similarly, a decision of the Full Bench late last year (Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249) overturned a decision to reinstate a ferry master who collided with a wharf while operating a ferry and who subsequently returned a positive urine drug test for cannabinoids.

The fact that the employer had a zero tolerance drug policy was a key factor in the Full Bench's reasoning in finding that non-compliance with the policy justified termination of employment (as there was no evidence that the employee's drug use caused any impairment nor contributed to the incident).

Finally, in a Commission decision this year that provided hope and optimism to even the most jaded employment practitioner (Cunningham v Downer EDI Mining Pty Limited [2015] FWC 318), the Commission upheld the dismissal of a dump truck driver who recorded a positive result for methylamphetamine at four times the reporting cut-off figure saying the "test result was appropriately treated as a prima facie serious risk to the safety of fellow workers".

Commissioner Cambridge recognised the role of drug testing regimes in improving safety and was exceptionally critical of the CFMEU's defence stating "it was highly regrettable to observe during the Hearing that an organisation which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580 tonne truck whilst having methylamphetamine in their body at a level 4 times the reportable cut-off figure".

Implications for your business

While the string of recent decisions have been encouraging for employers, the Commission's approach to drug and alcohol issues has been inconsistent, particularly at the single Commissioner stage.

The Commission has found that breach of a drug and alcohol policy may justify dismissal even where there is no evidence of impairment but, in our view, it may not always follow this course, for example where the:

  • work being performed by the employee is not high-risk;
  • relevant policy is not clear in its application;
  • drug and alcohol policy has not been consistently applied in the past;
  • business has itself failed to comply with the policy; or
  • policy is expressed to be intended to ensure fitness for work and a safe workplace (rather than a zero tolerance approach).

What should you do now?

If you do not already have one, your business should introduce a drug and alcohol policy (particularly if it operates in a high-risk industry), to assist to discharge statutory health and safety obligations and to reduce safety risks in your workplace.

If your business has a drug and alcohol policy in place, it should be reviewed to ensure it reflects current legal requirements and expectations. In particular, a drug and alcohol policy should:

  • set standards and procedures which reflect the safety risks associated with the business and the work being performed (as discussed above, a zero tolerance approach may not be appropriate in all workplaces);
  • be expressed in clear terms and be consistently (but fairly) applied;
  • be readily available and consistently communicated to employees;
  • regulate the use of synthetic drugs;
  • be flexible so that new sampling methods can be implemented as necessary;
  • be a standalone policy and not incorporated into an industrial instrument, to reduce the risk of employees/unions referring disputes about the policy/procedures to the Commission for arbitration. The effectiveness of this strategy will depend on the terms of the dispute settlement clause in the industrial instrument.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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