No ‘Use it or Lose it’ Application to Drug Policies: Employer Entitlement for Policy Implementation

31 January 2018

In a recent and pivotal finding, the Fair Work Commission (FWC) has concluded that employers are entitled to conduct random drug testing at high risk sites where the relevant agreement so permits. The FWC further held that the ability to drug test did not expire solely because it had not been regularly implemented, and was not held on a “use it or lose it” basis.

Background

Concrete piping company Rocla Pty Ltd (trading as Rocla Pipes and Products) (the Company) established a policy in 2005 which allowed for random urine testing of its workers (the Policy). In 2008, the Company had discontinued regular testing after a dispute, however the Policy itself remained largely unchanged despite its lack of operation.

The Company sought to implement a revised 2017 version of the Policy at its Wodonga site, which would see the recommencement of random drug testing, including by urine sample, and was to affect 65 workers.

Hearing

On 6 September 2017, the Australian Workers Union (AWU) disputed the Company’s ability to re-introduce the random testing, arguing that it had not given adequate notice to its workers.

Specifically, the AWU did not seek to challenge testing generally, rather it opposed random testing by way of urine sampling. The AWU contended that urine sampling was invasive, unnecessarily intruded into workers’ lives as it revealed drug use over a wider period of time, was more sensitive, and was thus unjust and unreasonable when compared to other means of testing. It further posited that the Company had to conduct genuine consultation with the workers regarding any changes to implementation, and could not rely on the existing Policy terms given the time elapsed since testing had been undertaken.

Conversely, the Company submitted that clauses 12 and 13 of the Policy had remained largely unchanged since 2006. The relevant clauses stipulated that all employees “observe Rocla’s safety rules, procedures and regulations (as amended from time to time)” and were not to be “under the influence of drugs and alcohol while at work.” The Company also noted that other sites were maintaining adherence to the Policy and pointed to test results that indicated an increasing number of positive tests for methamphetamines/MDMA/ice/ecstasy and benzodiazepines.

FWC Finding – ‘Use it or Lose it’ not Applicable to the Policy

Deputy President of the FWC, Ian Masson, agreed with the Company. In doing so, he noted that his task was not to be concerned with the merits of urine testing against those of oral swab testing, but “whether the relevant clauses in the agreement permit or preclude random urine testing.”

Although the Company did not have an absolute right to change policy terms without consulting its workers, the clear and unambiguous wording of the Policy did not beget an obligation for the Company to consult on safety procedures to the extent that the AWU contended. Irrespective, the Deputy President found that the Company had consulted the workers as much as it needed to.

The fact that the content of the Policy did not “substantively change” from 2008 to 2017 was highly relevant. The FWC found that, on the facts, the decision not to implement the Policy did not erode the Company’s rights to do so. In conclusion, the Deputy Commissioner explained that “Rocla is permitted to require employees at [the Wodonga site] to comply with random urine testing provisions in accordance with the Rocla Products Drug and Alcohol Policy and Procedures.”

Lessons Moving Forward

This FWC hearing reinforces key policy matters for employers, particularly where the drafting and enactment of drug and alcohol clauses are concerned.

Primarily, employers should consider:

  • The aims and objectives of the specific policy clauses;
  • How the relevant policy clauses are being applied on a company-wide scale, and whether such application is consistent across the board;
  • The objective clarity of policy wording;
  • The nature of the work being conducted and inherent risks involved;
  • Standard policy operation in the relevant industry;
  • Consultation requirements in executing the policy;
  • Education and training requirements;
  • The needs and circumstances of the company and individuals.

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