- Employers have a duty to maintain a workplace that is safe and without risks to health.
- Employers are justified in considering drug and alcohol testing procedures, especially where their workers are employed in high risk areas such as manufacturing, mining or construction.
- A recent decision1 of the AIRC reiterated the right of an employer to address its OHS risks by conducting drug and alcohol testing. It also found that an employer’s use of urine testing was unfair and unjust to employees but could reasonably be used by the employer on an interim basis.
- The AIRC accepted the union submissions that saliva testing was preferable, once an authorised testing regime was established.
- This decision is the result of a private arbitration by Senior Deputy President Hamberger. As such, the decision is not binding, but may be persuasive in similar proceedings based on similar facts before the AIRC.
|
Occupational Health and Safety (OHS) is an important aspect of all workplaces.
According to most state OHS legislation, an employer must, so far as is reasonably practicable, provide a working environment that is safe and without risks to health. This obligation includes taking steps to ensure that employees, contractors and the public do not have their health and safety put at risk by providing safe plant and systems of work, providing adequate facilities, information, instruction training and supervision. Similar obligations extend to contractors and persons/bodies who manage or control workplaces.
In order to maintain or enhance the safety of their workplace, many employers already have, or are looking to introduce, drug and alcohol testing to minimise the risks in the workplace resulting from employees impaired by drugs or alcohol. This is especially important in industries such as manufacturing, transport, construction and mining, or where employees and contractors are required to work with dangerous plant and goods. In these environments, the risk of serious injury (or worse) is high.
Some employers may be reluctant to introduce such a policy due to actual or perceived opposition from unions or employees. Some employers simply do not know where to start. However, such difficulties and concerns will not overrule your obligations as an employer, principal or person in control of a workplace.
A recent decision of the AIRC accepts that an employer has a legitimate right to eliminate these risks but has highlighted the practical dilemmas of implementing a fair and just testing procedure. The key legal issues which this case discusses are:
- What type of testing is fair and reasonable?
- Who should be tested?
- Who should perform the testing?
Background to case
Shell Refining (Australia) Pty Ltd’s (Shell) applied to have a dispute resolution process conducted under the Workplace Relations Act 1996 (Cth). The dispute arose out of concerns from the Construction, Forestry, Mining and Energy Union (union) regarding aspects of Shell's revised drug and alcohol policy for the Clyde Refinery and Gore Bay Terminal.
The union expressed concerns over:
- the company’s proposal for urine testing (as opposed to oral fluid (saliva) testing)
- the policy applying differently to employees in different roles, and
- the introduction of the policy in respect of employees before all contractors are covered by comparable policies.
In our experience, such concerns and disputes over the implementation of a drug and alcohol policy are not uncommon.
Senior Deputy President Hamberger’s conclusion
What type of testing is fair and reasonable?
Senior Deputy President Hamberger found that:
Urine testing is unjust and unreasonable
The implementation of a urine-based random drug testing regime would be ‘unjust and unreasonable’. Senior Deputy President Hamberger accepted that saliva testing detects drug use in the previous few hours whereas urine testing has a wide ‘window of detection’ meaning it will detect drug use over the previous few days. This means that urine testing will also pick up an employee who has ingested drugs a few days earlier but who may not be impaired at the time of the testing. Senior Deputy President Hamberger stated that:
"The employer has a legitimate right (and indeed obligation) to try to eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety. Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time".
Oral testing can be used to test for the same drugs as urine testing
However, as Australian Standards do not set target concentration levels for certain drugs, if testing occurs for these, the target concentration level needs to be agreed with the unions and laboratory.
Saliva testing can be accurate, but there are no accredited laboratories yet
Although, there were no grounds to support Shell’s view that laboratory-based saliva testing was inaccurate, Senior Deputy President Hamberger said that Shell cannot be expected to implement a random drug testing system based on saliva yet because no laboratories have so far been accredited under the Australian Standard.
Urine testing on an interim basis is not unreasonable
Somewhat curiously, despite the finding that urine testing was unjust and unreasonable, Senior Deputy President Hamberger found that, pending the accreditation of laboratories for saliva testing, it would not be unreasonable for Shell to implement a urine-based testing regime. Although Senior Deputy President Hamberger did not explain the reasons for this aspect of his decision, it is possible that he concluded that the urgency of implementing any form of testing (for OHS purposes) overrode the possible short-term unfairness arising from the urine testing process.
Who should be tested?
Senior Deputy President Hamberger also found that:
It is not unjust or unreasonable for some employees to be subject to random testing and not others
This is if there is an objective reason for this distinction based on a risk assessment process. For example, if the OHS risk in one working environment is very low, it may be excusable to limit random testing to the higher risk area. This aspect of his Honour’s decision could be used by management to justify a testing system which excludes white collar or executive personnel.
It is not unjust or unreasonable for Shell to implement the policy progressively in respect of contractors
Senior Deputy President Hamberger felt it appropriate to set time limits around the process and suggested that Shell should be able to fully implement the policy in respect of contractors within six months. This aspect will be important for many employers—especially in construction and manufacturing where contractors can constitute a large proportion of a site workforce. Of course, an employer may not have a ‘right’ to demand certain contractors be tested, so steps may be required to ensure contracts and/or site protocols are amended over time to reflect this.
Implications for employers
- Employers who do not have a drug and alcohol policy in place should give serious consideration to whether they are complying with their occupational health and safety requirements. In this case neither the union nor the AIRC questioned Shell’s ability to introduce a drug and alcohol policy to maintain a safe workplace. This is consistent with our experience that many unions now recognise the significance of certain testing on OHS grounds.
- Some unions may still use this case in campaigns against drug testing. Employers with drug and alcohol policies that include urine testing should be prepared for the possibility of a challenge, especially since elements of this decision can be used to undermine both urine and saliva testing.
- Some aspects of this decision are curious and may be open to challenge or distinction in a future decision with similar facts. For example, the requirement that accurate saliva testing can only be carried out in an accredited laboratory could be further challenged. Roadside saliva-based drug testing is currently relied on in a number of states to prosecute driving under the influence of drugs.
- In some industries, such as mining in Queensland, there are statutory regimes that deal specifically with drug and alcohol testing. Even there, employees may try to rely on the Shell decision to resist urine testing and employers can become embroiled in a dispute (for example see CFMEU v Coal & Allied Mining Services Pty Limited (Mount Thorley Operations/Warkworth Mining), AIRC, 22 August 2008).
- Where it can be justified on an objective risk management basis, an employer does not have to implement a drug and alcohol policy identically in respect of all employees.
Endnote
1. Australian Industrial Relations Commission Decision
This article was written by Tony Wood, Partner and Natalie Ceola, Senior Associate, of our Melbourne office.
More information
For information regarding possible implications for your business, contact