A recent Fair Work Commission (FWC) decision has provided a welcome example where an employer was backed to manage drug and alcohol risks in a manner it deemed best for its workplace. AMMA Principal Workplace Relations Consultant Bill FitzGerald analyses the decision.

AMMA’s Principal Consultant Bill FitzGerald

WHEN it comes to managing the risks of alcohol and drugs in the workplace, AMMA’s strong position is that an employer should always have the right to manage such risks in the way it seems most effective, and should retain maximum flexibility to do so.

This is why concerns have been raised about a number of decisions from the FWC and other tribunals questioning whether urine or blood testing for drugs and alcohol are legitimate and reasonable measures.

The recent decision by Commissioner Jennifer Hunt in Arnott’s has bucked this trend, reinforcing the right for an employer to manage its own business and provide a safe workplace for its employees.

In this case, Commissioner Jennifer Hunt found that employer Arnott’s Biscuits’ adoption of urine testing was not unjust or unreasonable and “in all of the circumstances the selection by Arnott’s for urine testing at the Virginia site is a reasonable exercise of Arnott’s right to manage its business in the way it sees fit”.

Arnott’s presented extensive evidence to satisfy duty of care, showing that its policy had to go beyond simply ascertaining whether an employee is impaired, but also screen for “hangover” and long-term effects of regular drug users. A third party was engaged to provide expert advice.

Arnott’s also proved that a high number of employees had been adversely impacted by excessive drug and alcohol-taking and even admitting to consuming them at work.

It was also significant that Arnott’s did not propose to use the urine testing method for random testing. The urine testing policy was proposed for pre-employment; following a serious incident; an employee returning to work after testing positive; and where Arnott’s had a reasonable belief an employee was impaired.

Union and employer clash over testing method

The proposed policy had not been fully implemented when the union (United Voice) challenged it through the FWC.

Arnott’s sought an order to implement the policy.

The company proved through well-presented evidence that the site was a high-risk environment with moving plant and other hazards.

It also proved that its provider advised that urine testing was more accurate, screened for a broader range of drugs and could identify employees who were regular drug users who may be subject to a long-term hangover and posed a significant risk.

The union advanced a number of arguments based around impairment and that oral/saliva testing was a more appropriate form of testing because there were no privacy issues and it was more accurate in detecting acute impairment.

It argued that a positive test result was not conclusive of an employee actually being impaired at the time of detection.

Commissioner Hunt found that a number of large organisations, such as Qantas, had also introduced the policy of urine analysis but said “this decision does not in any way suggest that where an employer has agreed with its employees to conduct oral testing of its workforce, that determination is flawed”.

“The method of detection of drugs and alcohol is a matter for each employer and its employees,” Commissioner Hunt said.

She also found that the proposed urine testing would be a much greater deterrent to the workforce in this case.

Commissioner Hunt green-lighted the proposed policy and required Arnott’s to appropriately communicate the final version to the workforce.

Implications

This decision is welcome as it reinforces the important principle that when it comes to providing a safe workplace, including one where the risk of alcohol and drug impairment is minimised, it is the employer’s prerogative to pursue and implement policies and procedures best suited to that workplace.

That the FWC in this decision backed the use of urine testing methods is also significant, given a number of FWC decisions in recent years had seen the tribunal question the use of urine testing, creating some uncertainty in drug and alcohol testing procedures. This decision gives some clarity for employers intending to use urine-based testing for certain circumstances.

As with all workplace policies and procedures, AMMA strongly encourages employers seek advice before implementing a new policy or revising an existing one.

For example, an extensive education and consultation process around why and how the policy was being implemented is an essential step.

For further advice about drug and alcohol policies in the workplace, contact AMMA’s Principal Consultant based in AMMA’s Hobart Office, Bill FitzGerald.