qld eils seminar: taking the piss? alcohol and drug testing in the workplace

11 June 2014

TAKING THE PISS?

DRUG & ALCOHOL TESTING IN THE WORKPLACE

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Taking the piss? Drug & Alcohol Testing in the Workplace

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AGENDA

Overview of drug and alcohol testing methods

Case law: The debate between urine and saliva testing

Privacy regulation of drug & alcohol testing

Negotiating drug & alcohol testing policies & EBA clauses

Morning tea

Workplace drug and alcohol testing: is it lawful?

Consequences of failing a positive drug and alcohol test

MySuper Amendments


7

DRUG AND ALCOHOL TESTING

Emma HoySpecial CounselEmployment & Industrial Law Section

DRUG AND ALCOHOL USE IN THE WORKPLACE

Alcohol and other drug related problems can occur in any workplace.

Costs include injuries, absenteeism, lost production, workers compensation and

rehabilitation services

Drug and alcohol use can have both a direct and indirect impact on workplace health

and safety. In particular, D&A use can cause:

Impairment

Intoxication

Fatigue

Hangover

Negative health outcomes

Addiction


WORKPLACE DRUG AND ALCOHOL TESTING

To respond to the risks associated with drug and alcohol use and

impairment, employers have, with renewed frequency, adopted workplace

drug and alcohol testing policies.

Competing considerations in this debate include:

Workplace health and safety;

Employee privacy and unreasonable intrusion into private life;

Employee welfare;

Productivity; and

Employer and employee reputational issues.


OVERVIEW OF DRUG AND ALCOHOL TESTINGMethods of Testing

1. On-site screening

2. Laboratory analysis

Testing Programs

3. Pre-employment

4. Post accident/incident

5. Random

6. For Cause

Types of Workplace Drug and Alcohol Tests

7. Breath Analysis

8. Urinalysis

9. Saliva

Source: Ken Pidd, Workplace drug testing: evidence and issues, NCETA, Flinders University


Source: Ken Pidd, Workplace drug testing: evidence and issues, NCETA, Flinders University Taking the piss? Drug & Alcohol Testing in the Workplace

METHOD OF TESTING

ADVANTAGE DISADVANTAGE

ON-SITE DRUG SCREENING

Relatively inexpensive Quick Easy to administer

Cannot distinguish between prescribed drug and illicit drug use

Lower level of accuracy and reliability than lab testing

Some prescribed drugs/food stuffs can produce false positives

Subject to human error

LABORATORY DRUG

ANALYSIS

More reliable and accurate than on-site testing

Can detect wider range of drugs

Can detect both level of drug use and metabolite present

Expensive and time consuming Cannot distinguish between

legitimate prescription drug use and illegitimate use

Some prescribed drugs/food stuffs can produce false positives

Subject to human error

TYPE OF TEST

ADVANTAGE DISADVANTAGE

BREATH TESTING

Onsite test that can reliably indicate alcohol intoxication and or impairment

Non-intrusive Wide acceptance

Can only detect alcohol use Requires constant calibration Can be affected by paint and

solvents Cannot detect hangover effects

URINE TESTING

Inexpensive (test) Developed methodology Fewer sample storage issues Detects benzodiazepines

(sleeping tablets) May be more accurate than

saliva testing (query)

Intrusive – privacy concerns Collection may be expensive

and time consuming Cannot detect

impairment/intoxication Cannot detect hangover effects may detect historical use (i.e.

private time)

SALIVA TESTING

Non-intrusive Can detect recent use so

better indicator of impairment Difficult to adulterate

More expensive Query accuracy compared to

urine

Source: Ken Pidd, Workplace drug testing: evidence and issues, NCETA, Flinders University Taking the piss? Drug & Alcohol Testing in the Workplace

PROBLEMS WITH DRUG AND ALCOHOL TESTING

Commentators question the cost effectiveness of drug and alcohol tests and

their efficacy to deter drug and alcohol use at work, reduce the prevalence

of injuries and accidents and improve safety.

Some consider such tests to be ineffective as workplace drug and alcohol

tests cannot determine:

past drug use;

the degree of impairment/intoxication (except alcohol breath analysis);

If the person is a chronic, casual user or an addict; or

If the drug was prescribed.


CASE LAW: THE DEBATE BETWEEN URINE AND SALIVA TESTING


URINE OR SALIVA TESTING?

The issue of whether urine or saliva drug and alcohol testing is the most appropriate

drug testing methodology is controversial.

There remains scientific debate as to the better method of testing.

There have been a number of decision of industrial tribunals relating to this issue but

there is not yet any consensus. See, for example:

– Boral Cement Ltd and AWU (unreported, 21 October 2011)

– CFMEU v HWE Mining P/L [2011] FWA 8288

– Briggs v AWH P/L [2013] FWCFB 3316

The FWC has come under criticism for its alleged inconsistent decision-making on

this issue.

A five member Full Bench of the Fair Work Commission will shortly be convened to

consider this issue.


ENDEAVOUR ENERGY V CEPU, ASU, APESMA [2012] FWA 1809, SDP HAMBERGER

Employer sought to introduce a new policy and procedure relating to alcohol

and drugs in the workplace. The Unions objected to certain aspects of the

policy.

The dispute was referred to the then-FWA to arbitrate.

The principles of managerial prerogative outlined in the XPT Case (AFULE

v State Rail Authority of NSW) applied, including not interfering in the right

of an employer to manage, unless it is “unjust or unreasonable”.


ENDEAVOUR ENERGY CONT.

It was accepted that random D&A testing was reasonable.

SDP Hamberger held:

A uniform BAC restriction of 0.05 was not appropriate. The level should

be 0.02 for ‘high risk’ jobs and 0.05 for all others.

Pre-employment and placement testing is reasonable.

Cause/suspicion, accident or post-incident testing is appropriate

provided that there are ‘reasonable grounds’ for considering drugs or

alcohol may have been a contributing factor. Cause/suspicion can

include neglect, carelessness, irrational behaviour or repeated absence.


ENDEAVOUR ENERGY CONT.

SDP Hamberger held:

The proposed process for random testing was reasonable (including use

of a computer algorithm for selection).

Confirmatory testing should take place in the lab (AS 4760).

There was no need for an ‘amnesty period’, although a short time

between the education programme and ‘roll-out’ is appropriate.

To require mandatory disclosure of prescription medication is an

unreasonable invasion of privacy. This should only be required on a

positive test.


ENDEAVOUR ENERGY CONT…URINE OR SALIVA TESTING?

On the question of the drug testing method, his Honour held:

Both methods are susceptible to cheating;

Australian standards, accredited laboratories and on-site testing devices

exist for both methods;

Neither method tests for impairment, although saliva testing is more

likely to identify impairment (eg. four hour lag time for urine testing);

Testing should be conducted consistent with Australian Standard AS

4760-2006: Procedures for specimen collection and the detection and

quantitation of drugs in oral fluid.


ENDEAVOUR ENERGY CONT…URINE OR SALIVA TESTING?

“Not only is urine testing potentially less capable of identifying someone who

is under the influence of cannabis, but it also has the disadvantage that it

may show a positive result even though it is several days since the person

has smoked the substance…a person may be found to have breached the

policy even though their actions were taken in their own time and in no way

affect their capacity to do their job safely.”

Endeavour Energy decision upheld on appeal to Full Bench.


ENDEAVOUR ENERGY[2014] FWC 198

Following a decision by NATA (National Associating of Testing Authorities) to

withdraw provision of accreditation for on-site saliva testing, the employer

applied to the Commission to alter its previous ruling on the basis of a change in

circumstances.

SDP Hamberger held:

No evidence to suggest that on-site oral fluid testing devices are unreliable;

In the absence of the NATA accreditation being suspended, there was

evidence of appropriate quality control measures for on-site devices;

There was no basis for an alteration to the previous Commission decisions.

It was not put that, in the absence of accreditation, on-site testing was not

possible.


MUA V DP WORLD LTD [2014] FWC 1523, DP BOOTH

DP World sought to implement a national Alcohol & Drugs Policy.

The Unions (the MUA and TWU) objected to certain aspects of the policy.

The Commission adopted the test in the XPT case regarding managerial

prerogative.

The employer sought to introduce a second urine test, after an initial non-

negative saliva test for drugs.


MUA V DP WORLD CONT.

On the question of the method of drug testing, her Honour held:

Impairment from cannabis commences after 30 mins and lasts 4-6

hours.

A saliva test will not detect cannabis in the first 30 mins, and after 4

hours (or cannabis that has been eaten).

A urine test will likely not detect cannabis in the first 2 hours, and will

detect cannabis after days, or even weeks, after smoking (without

revealing time of use, or level of impairment).


MUA V DP WORLD CONT.

Her Honour held:

In relation to amphetamines/psychostimulants, MDMA and opioids, the tests are of

equal utility.

In relation to benzodiazepines, a urine test is preferable.

Urine testing is “more personally intrusive than oral fluid testing” and “may reveal

personal choices of individuals that do not present a risk to safety in the workplace.”

It would therefore be unreasonable to have a urine test, after an initial non-

negative saliva test.

In a confirmatory test, the same suite of drugs should be tested for (i.e. not an

increased range, or only that drug which was non-negative).

Employee may request attendance of MUA Delegate at a confirmatory test, and any

subsequent engagement with the employer.


MUA V DP WORLD THE FIGHT CONTINUES…

Currently the subject of an appeal to an extraordinary five member Full

Bench.

Hearing presently scheduled for 12 and 13 June 2014.

VP Catanzariti granted a stay of DP Booth’s order to cease urine testing,

because of the “significant confusion” and “resources required” if DP World

had to modify its testing arrangement and was then successful on appeal.


PRIVACY REGULATION OF DRUG & ALCOHOL TESTING


PRIVACY REGULATION

Federal Privacy Act 1988 (Cth)

Limited application

No express regulation of D&A testing

Employee records exemption

Queensland Information Privacy Act 2009 (Qld)

Limited application: Public Sector

No express regulation of D&A testing

No employee records Exemption

Currently no Health Record Act unlike other states (Vic)


NEGOTIATING DRUG & ALCOHOL TESTING POLICIES & EBA CLAUSES


BARGAINING FOR D&A TESTING SCHEME IN AN EBA

The advantages of regulation by industrial instrument vs employer policy.

D&A testing regime a ‘permitted matter’ under s 172(1).

Ensure full access to dispute arbitration under DSP (eg. be wary of OHS

carve-outs).

Ensure D&A testing regime ‘covers the field’ with respect to D&A testing.


CONSIDERATIONS IN A D&A TESTING REGIME

A non-punitive and supportive approach (eg. EAP, voluntary testing).

Consider use and disclosure of personal information collected through

testing.

Consider the storage and security of personal information, including a

procedure for destruction.

Ensure confidentiality of test results.

Ensure access to results of testing, at same time as employer, with right to

have spare (‘B-Sample’) tested.


CONSIDERATIONS IN A D&A TESTING REGIME (CONT.)

Ensure consistency with Australian Standard.

Consider whether on-site or lab testing more appropriate.

Consider appropriate level of BAC for the circumstances.

Closely scrutinise the ‘triggering’ events for testing (particularly for

cause/suspicion).

Consider the best process for ‘random’ selection of employees.


QUESTIONS?


33

IS IT LAWFUL?

Rachel SmithLawyerEmployment & Industrial Law Section

EMPLOYERS’ OBLIGATIONS

Workplace health and safety

Industry regulation


BHP IRON ORE V CMETSWU

(1998) 82 IR 162

BHP sought to introduce a drug and alcohol testing programme.

The WA IRC determined that the proposed programme was reasonable.

It said:

There can be no doubt that the Programme involves an intrusion into the privacy of

individual employees. However the current standards and expectations of the

community concerning health and safety in the workplace as evidenced by legislative

prescriptions and judgments of courts and industrial tribunals are such that there will,

of necessity, be some constraint on the civil liabilities at times and, in particular, an

intrusion into the privacy of employees.


CFMEU V WAGSTAFF

[2012] FCAFC 87

Wagstaff was a contractor on a Thiess motorway project.

Thiess required all of its contractors to comply with its Fitness for Work

policy in relation to their employees.

Policy required random drug and alcohol testing.

Wagstaff Enterprise Agreement included policy on self-management of drug

issues, and was silent on drug and alcohol testing.


CFMEU V WAGSTAFF

CFMEU objected to the drug and alcohol testing, and argued that because

the enterprise agreement was silent on drug and alcohol testing it was

prohibited under the agreement.

The Full Federal Court found the agreement did not prohibit mandatory

random drug and alcohol testing. The terms of the agreement did not

exclude coercive measures that were in the interests of safety.

Court confirmed that terms of enterprise agreements do not displace

contractual terms, including the obligation for an employee to abide by

lawful and reasonable directions from his or her employer.


BRIGGS V AWH PTY LTD

[2013] FWCFB 3316

Mr Briggs was directed to undergo a drug and alcohol test and refused on a

number of occasions. AWH dismissed Mr Briggs.

FWC Full Bench found it was not an unfair dismissal:

Mr Briggs’ employment contract expressly required him to comply with

the company’s various policies as amended from time to time. Mr Briggs

was therefore contractually bound to comply with the drug and alcohol

testing policy.


BRIGGS V AWH PTY LTD

FWC Full Bench found it was not an unfair dismissal (cont.):

The policy was consistent with standard practice in the WA resources

industry.

AWH’s clients had imposed contractual obligations on AWH concerning

drug and alcohol testing.

The AWH workplace was one in which most employees were required to

operate heavy machinery and equipment as part of their daily duties.


LESSONS

Whether a direction to undergo a particular drug and alcohol testing

programme is lawful and reasonable in the circumstances will depend on:

the nature of the particular work and industry concerned;

the terms of the employer’s policy;

whether the employer puts in place safeguards for employee privacy.

Terms of enterprise agreements do not displace contractual terms, including

the obligation for an employee to abide by lawful and reasonable directions

from his or her employer.


CONSEQUENCES OF FAILING A DRUG AND ALCOHOL TEST


OLIVER WISE V MILDURA ABORIGINAL CORPORATION

[2013] FWC 6177

MAC’s aim is to “engage, support and strengthen Aboriginal people effected

by drug and alcohol use, mental illness and social disconnection”.

Mr Wise dismissed after a police check showed he had been charged with

possession of ecstasy (2 tablets) and unlawful possession of explosives (a

firecracker).

Question: was there a relevant connection between the offences and the

employment relationship?


OLIVER WISE V MILDURA ABORIGINAL CORPORATION

Commission found:

Unfair dismissal.

No link between conduct complained of and employment.

Even if there was a sufficient connection the finding of 2 ecstasy tablets

18 months old is not so serious as to suggest a repudiation of the

contract of employment.


VALID REASON FOR DISMISSAL, BUT OTHERWISE HARSH?

The cases show that a positive drug or alcohol test result is usually a valid

reason for dismissal, however you must look at the surrounding

circumstances to determine whether it is an unfair dismissal.

There are a number of cases in which an employee has been found to have

an unacceptably high level of drugs or alcohol in their system, but their

dismissal has been found to be unfair.


DALEY V GWA GROUP T/A DUX HOT WATER [2011] FWA 6993 Random drug and alcohol test at the start of his shift: BAC 0.76%. No argument that this constituted a valid reason for dismissal, however, Mr

Daley argued that his dismissal was harsh for other reasons:– Length of service with Dux.– Unblemished work record.– Breach discovered randomly, not through any incident.– Employer policy clearly contemplates a situation where an employee

may return a blood alcohol test in excess of the prescribed amount on more than one occasion without dismissal.

– Mr Daley admitted culpability.– Mr Daley had ceased drinking alcohol altogether.– Poor alternative employment prospects.


DALEY V GWA GROUP T/A DUX HOT WATER

…it is my view that the termination of the applicant’s employment on the basis of his first breach of the [alcohol and drug policy] was, in the circumstances, harsh. The applicant had 19 years service with an unblemished record. Due to his age, health and lack of education the effect of the termination upon him was more severe than it may have been on a younger, healthier or more highly educated employee. The Applicant has demonstrated that he recognises the seriousness of the breach and has ceased to consume alcohol. In my view he deserves at least one opportunity to demonstrate this is the case.

Commission ordered that Mr Daley was to be reinstated to his position. No

compensation was awarded because of his breach of the policy.


TOMS V HARBOUR CITY FERRIES

[2014] FWC 2327

Smoked a marijuana cigarette on 24 July 2013 for shoulder pain.

Called in to relieve as Ferry Master on 25 July 2013.

Involved in a minor crash, and subsequent blood test proved positive for

THC.

Harbour City Ferries dismissed Mr Toms.


TOMS V HARBOUR CITY FERRIES

DP Lawrence found Mr Toms’ dismissal unfair and reinstated him to his

employment. Relevant factors:

17 years satisfactory service.

No evidence of impairment and no link between drug test and accident

No harm occasioned to passengers.

Mr Toms had not been rostered on that day, he was helping out.

Mr Toms was cooperative and honest during the investigation.

Dismissal had a serious impact on Mr Toms.


BUT, SOMETIMES DISMISSAL IS FAIR

However, the cases also demonstrate that in many circumstances, it is fair

to dismiss an employee who has failed a drug and alcohol test.

Michael Donovan v Austcold Refrigeration [2013] FWC 4342

– Tested positive for methamphetamine during yearly medical screening

of employees.

– Stood down and directed to attend for another test 2 weeks later.

– Second test showed BAC of 0.137%.

– Fair dismissal.


BUT, SOMETIMES DISMISSAL IS FAIR

Allan Carter v BIS Industries Limited [2013] FWC 8329

– Employed as a Kress Operator (large machine like a front end loader).

– Pot of molten slag detached from the machine, tyres of Kress on fire.

– Tested positive to cannabis.

– Fair dismissal.


DISHONESTY DURING TESTING

Issue of honesty, candour and trust and confidence is paramount.

Cases show that even where the employee’s positive drug test would not be

sufficient to warrant dismissal, their dishonesty during the testing or an

investigation was sufficient.

Ruddell v Camberwell Coal [2010] FWA 8436

– Dismissed for producing an adulterated sample (it was cold).

– Tampering with a sample or giving a fake sample sufficient to warrant

dismissal.

– Not an unfair dismissal.


DISHONESTY DURING TESTING

Stephen Vaughan v Anglo Coal [2013] FWC 10101

– 5 April – lied on screening form prior to test.

– 11 April – lied about having taken drugs after positive test.

– 16 April – admitted taking methamphetamine on the weekend prior.

– Commission: lying on 11 April justified dismissal.

– Open question: did lying on the screening form justify dismissal?


IRREGULARITIES DURING TESTING

McCarthy v Woolstar Pty Ltd [2014] FWC 1186

Positive for a high level of THC (3 times allowable amount).

Mr McCarthy argued that test should not be able to be relied upon

because the on-site testing body was not undertaken in accordance with

the Australian standard.

Not an unfair dismissal.


IRREGULARITIES DURING TESTING

Dawson v Railway Transport Services [2011] FWA 4915

Mr Dawson smelt strongly of alcohol at work.

Sent home, subsequently dismissed.

Commission: valid reason, but he had not been given an alcohol test, so

no opportunity to demonstrate that he was not under the influence of

alcohol.

Unfair dismissal.


QUESTIONS?


56

MYSUPER AMENDMENTS

Paul WatsonAssociateSuperannuation & Disability Insurance

Personal InjuryThis information is prepared for the purposes of the seminar conducted on 11 June 2014 only. The content of this paper is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the content of the foregoing but should take appropriate legal advice.