Employers often seek the right to be able to randomly test employees in an attempt to reduce the incidence of drunkenness and drug-effected employees in the workplace as part of the occupational health and safety policy. In Re AMEU v Newlands Coal Pty Ltd, Coal Industry Tribunal, Bacon C, 14/1/1994, the employer required that AWEU members participate in an Alcohol Awareness Program, which involved random breath testing. The Union argued that this was a breach of civil liberties and, therefore, was an unfair work policy. The Tribunal determined that the scheme was not introduced to catch and sack employees. The random testing was part of a much wider strategy to modify employee behaviour with the result that employees don’t attend for work under the influence of alcohol. Employees are already required by statute to attend for work free from the influence of alcohol and drugs to an extent that they can perform their work safely.
Introducing alcohol and drug testing
It is an accepted principle by industrial courts and tribunals that random testing is an intrusion on the privacy of the individual which can only be justified on health and safety grounds. The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by alcohol or drugs such that they could pose a risk to health and safety. Beyond that the employer has no right to dictate what alcohol or drugs its employees take in their own time. See Shell Refining (Australia) Pty Ltd, Clyde Refinery v Construction Forestry Mining and Energy Union  AIRC 510; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others  FWA 1809.
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Given the potential hazardous nature of the work in a particular workplace, together with the obligation imposed on an employer by state or territory occupational health and safety legislation, the introduction of random alcohol and drug testing at such a workplace could be justified. However, it needs to be recognised that the introduction of any form of alcohol and drug testing in a workplace should comply with the ILO code of practice on the management of alcohol and drug related issues in the workplace. This is particularly the case where the testing is random, rather than ‘for cause’.
The employer should implement its alcohol and drug testing policy (including random testing for alcohol and drugs), subject to the inclusion of safeguards such as:
- once there is a confirmed positive test result the responsible manager (or preferably a medical officer (MO)) would speak to the employee to ‘validate’ the result. The manager (or MO) would discuss the implications of the test result and the options for treatment or rehabilitation, where appropriate. The responsible manager or MO would then provide a report to the company indicating the employee had been tested positive and would recommend future action;
- an employee who has tested positive would — unless there were significant mitigating or aggravating factors — receive formal counselling;
- repeat positive test would receive progressively more serious sanctions, eg a formal warning, a final warning and ultimately dismissal;
- employees who need time off for alcohol and drug related problems would have access to the company’s personal leave policy in the same way as employee’s who are ill or injured for other reasons;
- disputes about the application of the company’s alcohol and drug policy should be dealt with through the disputes procedure in the relevant industrial instrument;
- the company alcohol and drug testing policy cannot be revised unilaterally by the company until the expiry of a new enterprise agreement.
See Caltex Australia Limited v Australian Institute of Marine and Power Engineers; The Australian Workers Union  FWA 424.
The refusal of an employee to undergo drug or alcohol testing where the contract of employment refers to the employer’s company policy which expressly requires an employee to comply with the policy could be deemed by the FWC to have refused to obey a lawful and reasonable direction by the employer and may be grounds for a valid reason for dismissal. See Briggs v AWH Pty Ltd  FWCFB 3316.
Appropriate method of drug testing
No consensus has developed in decisions of industrial tribunals as to what is the most appropriate method of testing.
The issue of whether the most appropriate method of drug testing is by collection and analysis of a urine sample or a saliva sample has proved controversial on two levels. Firstly, the scientific debate as to which method best detects drug use of a nature that may affect workplace health and safety. The debate involves the proposition that urine testing is the more accurate means of determining whether an employee has at some time consumed any one of a range of drugs of abuse, but that saliva is better at identifying likely present impairment from drug use (particularly cannabis use) because it only detects very recent use.
What this means is that oral fluid testing is more focussed on acute impairment, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns. See Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others  FWAFB 4998.
Secondly, which of the two competing workplace interests (private behaviour by an employee versus ensuring a safe working environment by taking all available measures) should be given priority in the selection of the appropriate testing method?
Both employers and employees are throughout Australia subject to statutory duties concerning workplace safety, breach of which may result in criminal liability, and employees are exposed to the possibility of injury or death if workplace risks to safety are not identified and either removed or controlled. In this context it has been argued that the wider net cast by urine testing is more effective in protecting this interest in that it may catch any user of drugs of abuse who may represent a current or future risk to safety, and also acts as a more effective deterrent to drug use.
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The Fair Work Regulation 2009 [Cth] (Reg. 1.07) defines the meaning of ‘serious misconduct’ for the purpose of the Fair Work Act (s12). The term includes wilful and deliberate behaviour conduct which involves the employee being intoxicated at work. An employee is taken to be ‘intoxicated’ if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
An employee who knowingly produces a sample in response to a random drug test that has been adulterated may be guilty of serious misconduct. See Ruddell v Camberwell Coal Pty Ltd t/a Integra Open Cut Mine  FWA 8436.
Harm minimisation and responsible service of alcohol
Many state and territories require licensed premises, such as hotels, restaurants and clubs, to have regard to the principles of harm minimisation, usually under the relevant liquor statute. This usually provides that applications for licences and certificates of registration must not be granted unless responsible service of alcohol standard is in place. Employees dispensing alcohol on licensed premises would usually be required to hold a current responsible service of alcohol certificate before being able to work in such a workplace.
For example, in NSW, the Liquor Act 2007 [NSW] and the Registered Clubs Act 1976 [NSW] require those involved in the administration of liquor and licensed premises to have regard to the principles of harm minimisation. The Acts also provide that applications for licences and certificates of registration must not be granted unless responsible serving of alcohol standards are in place.
Generally, RSA training applies to:
- approved managers
- staff, including promotional staff, involved in the sale, supply and service of alcohol
- volunteers, including club directors, who have liquor service responsibilities
- security officers with crowd control duties.