Mandatory Drug and Alcohol Testing – The Recent FWA Full Bench Decision

In a previous article we discussed Drug and Alcohol Testing at Work and in particular whether employers should implement a drug and alcohol testing regime (click here to read previous article).

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This issue has been the topic of much discussion in the last week or so due to the Fair Work Australia ruling that a Victorian construction company could introduce mandatory random drug and alcohol testing of workers [Wagstaff Piling Pty Ltd and another v Construction, Forestry, Mining and Energy Union [2011] FWAFB 6892 (7 October 2011)] The introduction of mandatory testing was viewed by the full bench as a “reasonable employer instruction”, particularly in the light of the occupational health and safety issues surrounding drug and alcohol use the workplace.

While this decision is yet to be tested, it is logical that the ability of an employer to impose mandatory drug and alcohol testing will to some extent depend on the nature of the workplace in question. For example, in an industry where workers deal with heavy equipment and machinery, there are much more significant workplace safety issues at play than in an office-based workplace. However that is not to say that an employer could not show that drug and alcohol testing is necessary in an office environment; the key is to show that it is a workplace safety issue and preferably have a policy that clearly outlines what is required of employees.

The FWA decision has certainly received some immediate and harsh criticism- the CFMEU is considering a court appeal, claiming that the “Fair Work decision is wrong at law and lacking in common sense”. Media outlets reported that both Harm Reduction Victoria and the Australian Injecting and Illicit Drug Users League have come out against the decision, claiming they are “extremely concerned” about the impact the decision will have on the choice of drugs that employees may take as a result of enforced testing, and the associated privacy issues that arise from mandatory testing. (Click here to read SMH article).

The recent decision did not go so far as to discuss who should be tested and how the test results should be treated, so we need to look to earlier decisions for this. We have addressed this point in our previous article however the main point here is that the expected practice is 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.

As with many workplace issues one of the simplest solutions for employers is to ensure that they have a policy on that issue and be clear about how that policy will be enforced. One of the first questions FWA asks in cases involving workplace disputes is “what does the policy say?”, so it follows that the best protection an employer can give themselves is to have a comprehensive suite of policies along with education and training of employees of what those policies mean for them. In the case of drug and alcohol testing, many of the objections to mandatory testing could be overcome with a policy that addresses how and why testing will take place and how the results of those tests will be treated.

Authors: Christine Broad, Solicitor and Andrew Bland, Principal

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This article is intended as a guide only and does not replace specific legal advice.