Employers have an obligation under the Work Health & Safety Act to ensure, so far as is reasonably practicable, the health and safety of workers.
One of the increasing areas of concern is drug and alcohol use which affects a workers’ performance or has the potential to cause harm or injury to other employees.
Many employers are implementing workplace drug and alcohol polices in an effort to satisfy their WHS obligations.
A recent decision by Fair Work Australia illustrates that in attempting to comply with WHS legislation, employers need to consider the privacy rights of workers.
The case involved a company implementing a new drug and alcohol testing policy which included urine testing. Both the employer and the Union representing the employees of the company, agreed that random drug and alcohol testing was appropriate from a WHS perspective. The cause for disagreement was the appropriateness of urine testing.
The general principle is that a judicial body should not seek to interfere with the right of an employer to manage its business, unless the employer is seeking from the employees something which is unjust or unreasonable.
Fair Work Australia found that urine testing was an unjust and unreasonable method because:
- oral (saliva) testing was available;
- oral testing is able to identify whether there has been recent consumption of drugs, whereas urine testing cannot; and
- urine testing can have a positive result even where the consumption of drugs occurred several days prior. There was therefore a risk that employees might be disciplined for drugs taken outside the employment context which at the time of testing had no WHS ramifications.
The decision illustrates the need for employers to be reasonable in their requirements of employees, whilst also balancing their WHS duties.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment policies because Helping You is Our Business.
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