19 Jun 2012
Courts Enforcing Drug Testing
The Courts are getting serious with safety. The Full Federal Court has held that the failure of an Enterprise Agreement to stipulate alcohol and drug random testing is no barrier to such a regime. The effect of the decision is dramatic.
Up until the decision the law suggested (and it was not clear):
- An alcohol and drug policy (ADP) must be adopted by agreement or with full consultation with the relevant union;
- The ADP must have at its essence, worker support and education, not discipline;
- All the law around the ADP issue was promulgated by state and federal commissions and tribunal which are driven by a beneficial reading of the relevant legislation to protect workers.
This case was a decision of the Full Federal Court. A court that supervises the low Tribunal. The law from this case is powerful and will cut through the bureaucratised, worker beneficial cases of the past. In simple terms the Court held (referring to Victorian legislation and is equally applicable to WHS states and territories):
- The company owed an obligation to workers to prevent the risk of injury. Testing for drugs and alcohol was a sensible method of achieving this;
- Despite the silence in the Enterprise Agreement around ADP - one did exist, didn’t authorise testing but did seek to make the workplace safe. This was consistent with the companies OHS duties;
- Workers have responsibility to co-operate with the employer in its compliance with OHS duties;
- As a result workers must undertake the testing.
This is a powerful case to permit the implementation of safety driven ADP. If you would like further information, please contact Andrew Douglas or an M+K office in your state.
Victoria - (03) 9794 2600
New South Wales - (02) 8298 9533
Queensland - (07) 3235 0400
Tasmania - (03) 6210 0000