Landmark Fair Work decision supports drug and alcohol testing

Workplace Drug Test, Employee Drug TestingThe role of drug and alcohol testing has been strengthened by a landmark Fair Work Australia decision. A dispute over proposed testing of workers subcontracted to a major highway construction projectcast scrutiny over the rights of employers to conduct workplace drug tests.

Fair Work Australia has found that drug and alcohol testing in Australian workplaces is legal, even if it has not been spelled out in employment contracts.

The Full Bench of FWA found against a union-led case to prevent workplace drug testing at a civil construction project.

The decision was handed down on October 7, 2011 and strengthens the legal rights of an employer to insist on employee drug testing as part of OHS and duty-of-care requirements.

The case

Wagstaff Piling Pty Ltd; Thiess Ptd Ltd v Construction, Forestry, Mining and Energy Union 2011 FWAFB 2892.

Major Australian construction, mining and services company Thiess required its employees and subcontractors to submit to random drug and alcohol tests under its comprehensive Fitness for Work policy.

When Thiess engaged engineering firm Wagstaff Piling as a subcontractor, it told its workers they would be required to undergo screening tests.

In May 2011 the Construction, Forestry, Mining and Energy Union (CFMEU) told Thiess management that Wagstaff Piling employees were not expressly covered by the policy and would not submit to any on-site drug testing.

The dispute went before the Victorian Building Industry Panel, with 13 subcontractors arguing the drug and alcohol testing was in breach of relevant enterprise agreements. The main argument was there was no express reference made to drug and alcohol testing.

The Panel recommended alcohol and drug testing on the construction project cease. The case was then brought before Fair Work Australia which also found that drug and alcohol testing should not legally continue.

The appeal

An appeal was made to FWA on the grounds that workplace drug tests were required to meet OHS and welfare requirements. Wagstaff Piling argued that while drug and alcohol testing was not expressly permitted under the Victorian Building Industry Alcohol and Other Drugs Policy, neither was it prohibited.

The Full Bench found in favour of Wagstaff on the grounds that the lack of clear inclusion in industry policy and enterprise agreements did not lead to “a conclusion that… such testing is not permissible”.

Powerful precedent

The Full Bench decision sets a significant precedent, clearly acknowledging that mandatory drug and alcohol testing is a lawful and reasonable requirement even when not expressly contained in enterprise agreements.

Stricter OHS laws are arguably the impetus behindincreased employee drug testing, with the benefits outweighing the cost of drug testing.

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