Occupational health and safety

23 June 2015

Drug and alcohol testing and policies

The introduction of policies dealing with drugs and alcohol in the workplace and the testing of employees is often challenging for employers. Additionally, various other matters also need to be considered and managed – including privacy and consultation. However, it can also provide opportunities…read more

The use of drugs and alcohol may impair an employee’s ability to perform their job safely and could expose others to unnecessary risks to their health and safety. Employees impaired by drugs and alcohol are not only a risk to themselves and their workmates but can also adversely affect productivity, harmony, safety and the culture of the business.

Employers have a statutory duty to ensure the health and safety of their employees and workers insofar as it is practicable for them to do so. As such, the employers duty extends to ensuring that employees are not impaired or working under the influence of drugs and alcohol. Likewise, employees have a duty not to work in an impaired state or where their acts or omissions may detrimentally affect others.

A drugs and alcohol policy, which includes a testing regime with consequences for attending work or working while impaired, provides significant assistance to employers in discharging their statutory duty in this regard. However, testing for drugs and alcohol usually meets opposition from employees and their unions.

The FWC has recognised the right of employers to have such regimes in place to assist in health and safety management. Employers however, may still be subject to scrutiny as to the ‘reasonableness’ of their policies and procedures. In considering what is reasonable, employers should determine if they intend to test everyone, including their employees and subcontractors, or only those involved in high risk work.

Various types of testing can be carried out including: 

  • pre-employment testing of a potential employee, before being offered employment; 
  •  random testing where a section or sections of employees are tested on an unplanned and non-selective basis; 
  •  cause testing where a worker is tested if there is a reasonable suspicion of impairment or they have been involved in an incident;  self-testing where workers are encouraged to test themselves prior to commencing work; and
  • targeted testing for higher-risk individuals who have previously tested positive to a drug or alcohol test or for roles that have critical safety criteria. 

It is vital, when implementing a testing regime, to keep up-to-date with advances in industrial law relating to the reasonableness of saliva and urine testing.

The validity of drug and alcohol policies is often assessed by way of dispute resolution and unfair dismissal proceedings. To safeguard against the risk of unfair dismissal proceedings, businesses should ensure, at the very least, that workers understand the terms of the policies which apply to them and the consequences of any breach. Policies should provide clear guidance for employees – including testing requirements and procedures, as well as setting out how employees will be treated if they return a positive test. Those policies should also be flexible in their application and the management of responsive action such as stand-downs, warnings, suspensions and dismissals. This means that not only is there an obligation, but also an incentive, to undertake/implement effective training and education programs.

It is important for employers to strictly adhere to their own policies. The policies should allow for:

  • sharing information;
  • providing feedback opportunities; and 
  • communicating the outcome to stakeholders.

Employers should also ensure they:

  • have a privacy policy;
  • notify workers about how they collect personal information, and obtain workers’ consent before collecting and using or disclosing that information; 
  • only collect information if it is reasonably necessary for a particular function or activity; 
  • take reasonable steps to ensure the information is secure; and 
  • allow workers access to their information and correct it if and when required.

Workers prosecuted for risking co-workers health and safety

A recent WorkSafe prosecution of a worker under section 25 of the Occupational Health and Safety Act 2004 (the OHS Act) focuses on the duty of the employees, in this case, for putting a work colleague’s safety at risk…read more

Crane truck driver, Giuseppe Sarlo, delivered roof trusses from a factory to a construction site where he found that there was no one to help him unload the trusses. He then rang the factory and two factory employees were sent to assist him. Mr Salo, who had a high risk licence for dogging and crane work, used the crane on his truck to lift the two employees from the second level of the structure to a height of seven metres. Photographs taken by a member of the public were provided to WorkSafe Victoria.

The driver pleaded guilty to breaching section 25(1)(b) of the OHS Act, for failing to take reasonable care for the health and safety of the two factory employees who were sent to assist him and were put at risk by his actions. He was given a 12 month undertaking on the condition he pay $500 to the Court fund and $1,500 in costs to WorkSafe. 

Federal Court upholds zero tolerance drug sacking

Harbour City Ferries Pty Limited sacked a ferry master for deliberately disobeying its zero-tolerance drug and alcohol policy, even though there was no evidence that the employee’s drug taking caused a safety incident, the Full Court of the Federal Court has confirmed….read more

The ferry master failed a urine test after crashing a ferry into a Sydney wharf in July 2013. The incident occurred after he agreed to cover a shift for a sick colleague despite smoking marijuana the night before. The sacked employee was reinstated by the FWC in April 2014. The employer then appealed and in September 2014 a Full Bench of the FWC found the “core issue” to be, that the ferry master, a senior employee, had deliberately disobeyed a significant policy.

The employee’s lack of impairment arising from drug use, the absence of a link between the drug use and the incident and the absence of substantial damage to the ferry were found not to be factors relevant to the grounds of misconduct identified as ‘non-compliance with the Policy’. The ferry master appealed but the Federal Court found that the FWC did not make any jurisdictional error in overturning the reinstatement of the ferry master. 

A safety rethink after three electrocutions on rural properties

Three Victorian workers were fatally electrocuted within months of each other after their vehicles came into contact with power lines. A coronial enquiry subsequently found that ‘at-risk’ workers had not been provided with adequate or sufficient site-specific information about the hazard…read more

Separate inquests found that employers and subcontractors who supply or distribute products to the agricultural sector, invest little time or resources into tackling the risks associated with delivering supplies and working in the vicinity of powerlines.

The coroner’s findings included, that farmers or property owners often acted as spotters for delivery drivers even though they were not qualified to do so; that there is a general lack of knowledge of minimum safety clearance requirements for tipper trucks operating near powerlines, and that safety instructions concerning powerlines were generally inadequate for delivery drivers working alone, as well as failing to provide suitable assistance to enable them to make proper assessments and effectively identify risks.

Counsel assisting the Coroner said there was little to no information passed on to drivers about safety hazards at delivery/drop sites and that employers need to take it upon themselves to ask property owners and farmers about site hazards and safety assessments and require them to provide maps of the properties and/or work areas which identify hazards such as powerlines and dams.

Included in the Corner’s recommendations were requirements that WorkSafe produce warning signs alerting visitors and contractors to the risks of overhead powerlines, as well as undertaking educational and safety campaigns in farming and rural communities to increase awareness.