Fair Work Australia has given Caltex Australia Ltd (Caltex) the green light to introduce random drug and alcohol testing in the case of Caltex Australia Ltd v Australian Institute of Marine and Power Engineers, The-Sydney Branch; The Australian Workers’ Union [2009] FWA 424 (19 October 2009).
The result came about after Caltex applied to Fair Work Australia to deal with a bargaining dispute following the Australian Workers’ Union’s (AWU) rejection of its proposed enterprise agreement for employees at its Kurnell refinery, in Sydney.
Caltex’s argument for random drug and alcohol testing:
• Caltex’s duties under the NSW Occupational Health and Safety Act 2000 were “onerous” and “absolute” and random tests would deter employees from working under the influence of drugs and alcohol in what was a “major hazard facility”.
• Caltex has an absolute obligation to obviate any risk – even one not ‘reasonably foreseeable’ – to the health and safety of its employees at the Kurnell refinery.
AWU’s arguments against random drug and alcohol testing:
• The tests could undermine Caltex’s OHS performance;
• Testing would generate “resentment amongst workers to the detriment of OHS”;
• Random tests had a “low likelihood of identifying drug usage but a high likelihood” of disenfranchising workers “to the detriment of OHS standards”.
• It has not been given any evidence that there was the risk of an accident or injury occurring on the Kurnell site as a result of substance abuse.
Senior Deputy President Hamberger’s findings – oral swabbing only – the test of recent use:
• The risk of an accident at Kurnell refinery due to an employee being impaired by alcohol and drugs is greater than one which is merely speculative or unduly remote.
• The AWU did not challenge Caltex’s contention that there was an ongoing problem with drug and alcohol abuse in Australia, and a strong link between substance abuse and workplace accidents.
• “The consequences of an accident at Kurnell due to an employee being impaired due to alcohol or drugs could be devastating.”
• A drug and alcohol policy, including random tests, should provide:
o A medical review officer to discuss options for treatment and rehabilitation with workers who return a positive test (through saliva tests or breath analysis);
o Formal counselling for employees who test positive – unless there is significant mitigating or aggravating factors;
o Progressively more serious sanctions for repeat positive tests;
o Employees who need time off work for drug or alcohol related problems with access to the company’s sick leave policy.
Lessons to learn:
• Random drug and alcohol testing appears to be acceptable in major hazard industries;
• Policies and Procedures need a consensual base, rest upon recognised OHS principles and have positive OHS outcomes.
• It is important to provide rehabilitation and counselling services as part of any drug and alcohol testing policy.