Employer’s “duty of care” enforced by Australian law

All businesses and organisations  in Australia are required by law to provide a safe workplace for their staff, visitors and community at large. If you believe there is a “culture of risk” at your workplace, a drug and alcohol testing program could be an effective risk management system to help prevent workplace accidents, especially in occupations where safety is critical.

A recent decision by the Australian Industrial Relations Commission (AIRC) edifies the use of workplace drug and alcohol detection programs.  It granted that an employer has a legitimate right to reduce/ eliminate risks within the workplace. Specifically, the AIRC fully supported the right of an employer to address its OHS risks by conducting drug and alcohol testing. Motioned by a full bench, Senior Deputy President Hamberger ruling in favour of Caltex Australia Ltd on 19 October 2009 authorised the use of random drug testing for Caltex’s Kurnell Refinery (and all Australian businesses/ organisations), stating:

“…both state and federal governments in Australia have taken the view that random testing for drugs and alcohol can be appropriate for workers involved in safety critical work.” (View and download the Caltex Australia Ltd case here).

An overview of this case’s key ruling outcomes (and implications for all Australian businesses and organisations) are outlined as follows:

  • All employers are legally obligated to maintain a safe workplace without risks to health.
  • All employers may justifiably consider the implementation of drug and alcohol testing.
  • All workplaces in high risk areas such as manufacturing, mining or construction are especially recommended to consider the implementation of drug and alcohol testing.

It should be noted that an earlier decision by the Australian Industrial Relations Commission (AIRC) on the 25 of August 2008, (in response to union submissions), recommended saliva testing as the preferred testing methodology. The AIRC – whilst agreeing with the union that an employer’s consistent use of urine testing was “unjust” and “unreasonable” to employees –  still maintained that the employer could reasonably implement urine testing on an interim basis. In alignment with union arguments then, the AIRC agreed that saliva testing was the preferred methodology to facilitate workplace testing once an authorised testing program was established. (View and download the Shell Refining (Australia) Pty Ltd case here).

For current legal testing guidelines please visit  www.standards.org.au. There are currently two Australian Standards for workplace drug and alcohol testing listed as follows:

  • The Australian Urine Drug Testing Standard 4308:2008
  • The Australian Saliva Drug Testing Standard AS4760:2006

For more information on these cases or their implications for your business or organisation, please visit the AIRC website at www.airc.gov.a or talk to our team of experts on (+618) 9204 2500.

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