A legal consideration of fitness for duty policy

When developing a fitness for work policy, it is important to have an understanding of the various legal considerations that will optimize the policy and make it most efficacious. The purpose behind fitness for work procedures is to minimize the risks that might possibly arise from hazardous behaviours such as the improper or inappropriate use of drugs and alcohol and other issues. Fitness for duty is viewed as an integral component of OHS management strategies, and relies on the identification of key factors which may compromise the duty fitness and therefore safety in a given organisation, industry or business enterprise.

Safety and Health legislation in various states require a periodic consideration of fitness for work. For example, in Queensland, The Coal Mining Safety and Health Act 1999 (Qld) states that there is the necessity to undertake periodic “assessment of mine workers to determine their fitness, and also requires the fitness for work programs be developed and implemented in Queensland mines.”  Drug and alcohol testing is now a contractual or corporate requirement in many of these mining sites and is an inherent component of the fitness for duty procedures. Minimal fitness requirements are part and parcel of the industry and ongoing monitor and testing is perceived as a sound way forward in the maintenance of a safe and responsible work environment.

In 2007, Blake Dawson Waldron Lawyers represented the Gladstone Power Station against the Electrical Trade Union in relation to their fitness for duty policy and the 2% cut-off levels for drug testing proposed by management. In their representation of the power station, they maintained that industry and companies must “demonstrate that the application of a fitness for work program will be fair and reasonable, having regard to the employer’s safety and health obligations in the context of the specific workplace.” [1]

In this hearing, the Queensland Industrial Relations Commission clearly stated that the case for the power station’s 2% alcohol cut-off for tests – proposed as a part of their fitness for duty policy (as opposed to the 5% cut-off proposed by the unions,) was “overwhelming,” maintaining that the lower cut-off was reasonable in the context of a workplace environment where there were high-risk hazards and where there was the requirement of complex task demands.[2] In short, the development of the drug and alcohol testing component of the fitness for work procedure is therefore reliant on a thorough investigation of the workplace context and the specific issues and hazards that arise there.[3]

Rauf and Elgar, from Blake, Dawson and Waldron go on to maintain that the main ingredients for implementing and managing successful fitness for work programs that can withstand legal scrutiny, include the following components:

  • Consultation  – with employees and representatives
  • Clear communication to all
  • The use of appropriate testing methods that are credible and reliable.
  • Setting appropriate cut-off levels which are not arbitrary but refer to the relevant standards and the workplace environment and context.
  • Instruction and training of those administering and implementing a program
  • Confidentiality and privacy issues
  • Employer compliance with their own program. [4]

CMM Technology offers credible and reliable testing methods suitable for a range of industries including mining, transport, aviation and defence. CMM Technology also supports the development of a robust and tailored drug and alcohol program as one component of a comprehensive fitness for duty procedure.  Call CMM Technology to gain advice on their extensive range of testing technologies that can be selected and adapted to your workplace environment.  CMM Technology – 08 9204 2500.

[1] Rauf, B., Elgar, B. Fitness for Duty in the Mining Industry: A Legal Perspective.

[2] Ibid.

[3] Workplace Relations Bulletin June 2007. http://lgaq.asn.au/c/document_library/get_file?p_I_id=418583&folderId=108671&name=DLFE-4016.pdf

[4] Ibid

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