Previously, we have discussed the notion of whether a company’s policies and procedures may be legally binding. In that article, we highlighted a recent decision in the Federal Court which outlined the importance of the content of company policy documents provided to employees and the need to ensure compliance with the processes and standards set out in such policy documents.
In relation to policies generally, we recommended that employers should
- Conduct a thorough review of employment policies and contracts to examine whether the language is promissory
- Take particular care with OH&S and EEO/Harassment policies because breach of contract under these policies could incur claims for substantial damages.
- Put procedures in place to ensure any employee complaints are investigated immediately and ensure the investigators are clear about their role ie not to attempt informal resolution.
When it comes to drug and alcohol testing at work, a policy needs to be in place that provides for this. All Occupational Health and Safety (O, H & S) legislation requires that an employer must, as far as reasonably possible, provide a safe working environment that minimises risks to an employees health. Drug and alcohol testing may form part of this requirement in industries where an employee may be exposed to risks of harm as a result of their own, or another employee being under the influence of drugs or alcohol.
There may be some degree of hesitation when considering implementing drug or alcohol testing at work as employees can be perceive these requests as "big brother" type behaviour from their employer, but properly implemented and explained, most employees will come to appreciate the process.
A 2008 decision of the Australian Industrial Relations Commission is still useful in providing guidance to employers on how to implement a drug and alcohol testing regime and what is considered fair and reasonable in the implementation of this regime. This decision stated that urine testing is unjust and unreasonable, as oral tests can be used to test for the same drugs as urine testing. However, it was also stated that urine testing, on an interim basis only is not unreasonable.
As far as who is tested, it was found that testing some employees, and not others, as a random testing procedure, is not unreasonable, and furthermore, it was not unreasonable to extend the policy in respect of contractors, so long as the contract provided for it by reference to a policy.
These points were further expounded in a decision by FWA in 2009 were it was held that, in certain industries, employers have not only a right, but an obligation, to carry out random drug and alcohol testing. This decision provided guidance to employers on how they should use the results from a drug an alcohol test. FWA held that the employee should receive the results first, and in the instance of testing positive, the issue should be addressed with the employee and termination should be the last resort.
Points for employers to consider when deciding whether to implement a drug and alcohol testing regime include:
- Whether their workplace needs a drug and alcohol testing regime and whether the employees are at risk if the organisation doesn’t test for alcohol and drugs.
- If there is no policy in place, one needs to be developed that outlines the reasons for drug and alcohol testing and how the testing is to be carried out. Any policy developed should be in collaboration with any interested parties, and be given the appropriate time to draft
- Any overarching statutory rules that deal with drug and alcohol testing in the specific industry that they operate may need to be considered also eg. Mining.
See also our previous article "Drug and Alcohol Testing in the Workplace - Duty or Liability?"