An increasing number of workplaces have introduced drug and alcohol policies which include random drug testing.  These introductions are not always warmly welcomed.

In the recent Fair Work Commission decision of Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075, the Full Bench held that it was not unjust or unreasonable for Port Kembla Coal Terminal Limited (the Employer) to introduce a random drug testing scheme which included both urine and saliva testing methods.

It is clear that there is inherent tension and indeed various shades of gray area in the obligations of employers to ensure a safe work environment and the intrusion on the private lives of employees by random drug and alcohol testing.

However, it is also recognised that random drug and alcohol testing plays an important part in the detection and deterrence of the use of substances which may impair an employee’s ability to perform their duties safely and therefore creating a work health and safety risk for themselves or for others.

There are a number of issues which need to be considered and addressed prior to the adoption and implementation of a drug and alcohol testing policy, including:

  • The nature of the workplace: is the workplace a “high risk environment” e.g., are employees regularly involved in operating machinery or vehicles, or is it an office based environment with different kinds of risk?
  • The method of the testing to be used (e.g. will testing be conducted by using urine, oral, blood or a combination)?
  • When is testing to take place (e.g. at random times or upon reasonable suspicion)?
  • The accuracy of the testing: test results may reveal an employee’s past rather than current drug use (no current impairment), opportunities and methods of cheating may be available, for example the unfortunately all too true but still very funny clean bag of urine in the underpants;
  • The consequences of a confirmed positive reading: (e.g. is a zero tolerance approach to be adopted? Should a disciplinary process be commenced, having regard to procedural fairness?)
  • The welfare of employees: will any assistance be provided to the employee who returns a confirmed positive test (e.g. rehabilitation, access to employee assistance programs etc)?

 

As with the introduction of workplace policies to ensure the health and safety of employees, consultation with employees and other stakeholders (such as employee associations or unions) should take place.

While it is important for an employer to address drug and alcohol use in the workplace in order to discharge its work health and safety obligations, employers are also reminded that there is no “one size fits most” approach to managing employees who misuse drugs and alcohol.

 

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