The Building Code 2013 ("Code") has recently been
amended to introduce a mandatory requirement for contractors and
building industry participants involved in government funded
construction projects to:
implement a comprehensive policy on drug and alcohol testing
(called a "fitness to work" policy); and
address drug and alcohol testing in their Work Health &
Safety and Rehabilitation management plans
APPLICATION OF THE CODE
The Code was introduced in 2013 and applies to building
contractors or building industry participants undertaking building
work which is the subject of the following levels of Commonwealth
at least $5 million and 50% of the total construction project
at least $10 million (irrespective of the proportion of that
sum to the total project value).
WHAT THE POLICY MUST ADDRESS
From 16 October 2015, all building contractors and industry
participants covered by the Code must have a Fitness to Work policy
which includes, as a minimum, the following:
how workers on site will be required to comply with the
the use of an objective medical testing method to detect the
presence of drugs or alcohol (the detection methods that will be
used must also be detailed in the policy);
the requirement that the following are tested for:
that a person returning a positive result will be deemed
"not fit for work" and will be prevented from working
until they can prove they are "fit for work";
the frequency of the testing (as prescribed in schedule 3 which
is dependent on the number of workers on site);
the procedure for selecting personnel to be tested (ie will it
be random or staged selection testing);
procedures for targeted testing of higher risk activities;
the counselling and assistance that will be provided to workers
returning a positive result.
Fair Work Building and Construction is responsible for
conducting audits on building contractors to ensure fitness for
work policies comply with the requirements of the Code.
ENSURE COMPLIANCE WITH THE CODE
Any building contractor or industry participant wishing to
tender for Commonwealth funded construction projects will need to
demonstrate compliance with the Code and, if successful in the
tender, continue to comply with the Code.
Accordingly, ensuring a suitably drafted Fitness to Work policy
is prepared in accordance with the requirements of the Code is
The Fitness to Work policy is also a useful document for the
purposes of disciplining employees who attend work while under the
influence of alcohol or other drugs. The Fair Work Commission has
confirmed that for high risk industries such as the construction
industry, drug and urine testing is reasonable to protect the
health and safety of workers. However, the reasonableness and
fairness of the terms of the policy are also matters the Tribunal
will have regard to in considering whether or not disciplinary
action against an employee was justified in the circumstances.
Accordingly, although the Fitness to Work policy is a mandatory
requirement for Commonwealth funded construction projects, it is
perhaps best practice for all employers in the construction
industry to implement comprehensive and fair policies dealing with
drug testing of employees.
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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