2 November 2014
Erin Lynch, Senior Associate
It is widely accepted that the implementation of a program of random and targeted alcohol and/ or drug testing is a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy.
However, the creation and implementation of a drug and alcohol policy requires a fine balance between preventing and reducing harm in the workplace arising out of drug and alcohol use and making sure not to encroach upon a worker’s liberty and freedom to do as he or she pleases outside of work hours.
One of the major decisions that an employer will have to make is the method of testing that will be adopted. The recent case of Harbour City Ferries Pty Ltd v Christopher Toms , highlighted the Full Bench’s reservations about urine testing. The Full Bench remarked that it “has some experience of applications involving the application and efficacy of such workplace policies. We are not persuaded that urine testing, the agreed method of drug and alcohol testing at Harbour City, is a guide as to the actual presence of marijuana in an employee’s system or any impairment arising as a consequence. It is a testing system which in this case indicated past use and not present impairment”.
Further, in a decision earlier this year, a Deputy President of the Fair Work Commission (“FWC”) said urine testing “is more personally intrusive than oral fluid testing even when…, it provides for urination behind closed door.
Urine testing may reveal personal choices of individuals that do not present a risk to safety in the workplace, but compromise their autonomy and dignity and lead to serious disciplinary consequences including job loss.”
Speaking at the NSW IR Society annual conference in May this year FWC President, Justice Iain Ross, addressed suggestions that the FWC’s decision-making, has been inconsistent in relation to the use by employers of urine testing of employees for drug and alcohol at the workplace.
In addressing the issue of whether the most appropriate method of workplace drug testing is by the collection and analysis of a urine sample or a saliva sample Justice Ross said the controversy exists at two levels. “At the core of this debate are the propositions that urine testing is the more accurate means of determining whether an employee has at some time consumed any one of a range of drugs, but that saliva testing is better at identifying likely present impairment from drug use (particularly cannabis use) because it only detects very recent use.
Secondly, there has been controversy over which of two competing workplace interests should be given priority in the selection of the appropriate testing method … there is the interest of employees in not having their private behaviour scrutinised by their employers … there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety”.
“One of the major decisions that an employer will have to make is the method of testing that will be adopted.”
Justice Ross said that properly analysed, there has been no inconsistency in the FWC’s treatment of this issue and that the approach taken by the FWC has simply evolved over time on the basis of the material presented in particular cases.
It is likely that the latest authority on this issue will be the decision in a five Member appeal in DP World Brisbane Pty Ltd & DP World (Fremantle) Limited and Others v The Maritime Union of Australia. The grounds of appeal raise issues about the relative merits of saliva and urine testing and the reasonableness of the employer’s policy. It is intended that the decision may provide greater clarity about these issues. The decision in this matter is currently reserved.
When introducing a policy, an employer should set out express guidelines and expectations of its workforce and each policy must be tailored to the individual needs of the business. This is particularly crucial in high risk environments that involve driving, operating machinery or performing certain medical procedures, for example, that require workers to be free of alcohol and/or other substances in order to safely carry out their duties.
When considering the introduction of a drug or alcohol policy, an employer should have regard to the:
- intentions to minimise drug and alcohol risks;
- procedures for achieving the intentions;
- roles and responsibilities of those implementing the policy;
- company’s position on alcohol and other drug use (for example, over the counter medications);
- the circumstances in which alcohol may be made available at workplace functions;
- methods to reduce any drug or alcohol related harm;
- procedures for addressing a worker who may be under the influence of drugs or alcohol;
- information on available treatment or counselling services; and
- possible disciplinary action following a breach of the policy.
“When introducing a policy, an employer should set out express guidelines and expectations of its workforce and each policy must be tailored to the individual needs of the business.“
There may also be a number of other times in which the consumption of alcohol is permitted during work hours and as such must be regulated, including Christmas parties, work functions and work conferences. However, where the workplace begins and ends constitutes a grey area within the law and as such it is difficult to determine where an employer’s responsibility lies and how far the scope of the policy extends.
Employers also need to consider any specific requirements applicable to their industry. For example, construction companies tendering for Victorian Government work will have to drug and alcohol test their workers and use up-to-date monitoring equipment, under changes to the Victorian Code of Practice for the Building and Construction Industry (the “Code”). Clause 8.2 of the Code requires contractors to have an approach to managing drug and alcohol issues in the workplace that helps to ensure that no person attending the site does so under the influence of alcohol or other drugs and in some circumstances have a fitness for work policy to manage alcohol or other drugs in the workplace.
When implementing and enforcing a drug and alcohol policy employers should:
- use credible and transparent systems;
- clarify procedures with employees so they know what to expect;
- ensure employees are aware of the possibility of random testing;
- align frequency and method of testing to circumstances of workplace;
- apply testing procedures fairly; and
- take measures to keep testing procedures and results confidential.
Employers should not:
- single any individual employee out;
- use harsh penalties unnecessarily; or
- change a drug and alcohol policy without communicating clearly with employees.
The recent Harbour City Ferries decision mentioned above is an important reminder that employers need take steps to ensure that employees are aware of the policy, its procedures and application.
The decision to reinstate a Sydney Harbour ferry master was overturned by the FWC Full Bench, saying that while they had reservations about the method of drug testing, “the core issues, the valid reason for termination of employment was [the ferry master’s] deliberate disobedience, as a senior employee, of a significant policy”. Of significant importance in the decision was that the ferry master was aware of the policy and its application and he was aware that when he accepted the shift as ferry master it was likely that he would be in breach of the policy if tested.