Rules around Workplace Drug and Alcohol Testing in NSW

This article is aimed at small business owners and workers to provide a very basic understanding of the regulations, standards and laws surrounding workplace drug testing in NSW. This is not legal advice, I am not your solicitor, if you believe your workplace is not compliant, please speak with a WHS or Legal expert.


What is workplace drug and alcohol testing?

Workplace drug and alcohol testing is just any screening for drugs/alcohol that occurs in the workplace. It can involve a blood test (very rarely seen as reasonable/lawful), hair follicle test, urine test, breath alcohol test and/or oral fluid test.


Who has the authority to test a worker?

Put specifically, anyone that a health/safety policy authorises. Let's start with some basic definitions here.


A Person Conducting a Business or Undertaking (PCBU) is, broadly, any person who runs a business whether as a company, partnership or sole trader (whether or not they employee others). Their full definition is outlined in Section 5 of the WHS Act 2011.


A worker is any employee, contractor or subcontractor (or employee of), employee of a labour hire company, outworker, apprentice/trainee/student or volunteer who works for another person (in certain situations a PCBU may be considered an employee as well). This is outlined in Section 7 of the WHS Act 2011.


Section 28 of the WHS Act outlines the Health and Safety Duties a worker has to themselves and others. Depending on your industry, drug testing may be authorised based on Section 28(a) or Section 28(b) (taking reasonable care for your own health and safety and not endangering anyone else. For instance driving a truck drunk may be accepted as endangering another person so any attempt to prevent that would be seen as ensuring compliance).


In all cases Section 28(d) of the WHS Act dictates that a worker must comply with any health/safety policy their employer has notified to them. Not complying with a drug/alcohol policy could not only have you face internal discipline (suspension, dismissal etc.) but you may also be committing a Category 3 WHS offence outlined in Section 33 of the act and face a fine of up to $63,250.


Ok, a worker has to follow a drug policy or they may commit an offence, are there rules about the policy?

The main criterium in section 28(d) is that a worker must;

"co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers."

So let's break that down.


co-operate with any reasonable policy or procedure

A reasonable policy and procedure is usually decided on a case by case basis. There are a handful of caselaws which have outlined what a reasonable policy is (mainly cases brought on by unions), however there is no consistency as different industries have different operational needs.


Hair follicle testing is generally seen as reasonable for police officers as they are entrusted to enforce all sorts of laws, including drug crimes, which would be impossible to do impartially if they are using drugs themselves, so viewing the past 90 days of a police officers drug use by using hair follicle testing may be seen as acceptable. But is it acceptable for a carpenter? I would say no. If a carpenter has a joint on a friday night, recreationally, and does not drive or perform any paid work, should they potentially lose their job on Wednesday due to a positive hair follicle test? No, this is punishing someone who has committed no crime at the workplace and would be an overreach into their personal life without adequate justification. So, I tend to work with saliva which shows the past 12 - 24 hours of drug usage, not the past 90 days.


You would not need to comply with an unfair/unreasonable policy but if you think the policy is unfair, you should have it read by an industrial relations solicitor as the law is very broad in what it will consider 'fair'.


...relating to health and safety...

Drug testing is almost certainly a health and safety initiative in all but a few industries. So, we can accept it is a policy that is relating to health and safety.


...been notified to workers.

This is where a lot of companies become unstuck. I myself have worked for very amateur companies where the policy is included in a big 3 ring binder, you are expected to read it in a lunch break and sign between 10 and 20 policies. There is no way you can read the policies properly in this time and I would always consider a worker has not been 'notified' of a policy if they can't take it home and read it at their leisure. If your manager has a policy locked in their office you can't freely read, I believe you could argue you haven't been notified of it however if the policy is accessible on request or in a common area, you have read it and signed it, then I would accept you have been notified.


SUMMARY

A worker can be tested at the direction of a PCBU by any authorised person (i.e. Me or your safety officer if they have appropriate training).


Refusing to comply with a valid policy may see you face internal discipline and have you charged with an offence should the matter be escalated to the regulator.


A valid policy is one that I would make an already long article a novel into if I explained each consideration an industry needs to make, but in short it is one that is fair, transparent, suits the operational needs of the company, complies with industry standards/'norms'/practices and is clearly explained to and acknowledged by workers.


If you believe your workplace has an illegal/unreasonable policy in place you can complain to Fair Work Australia or NSW Fair Trading.


If you want an affordable policy, compliant for your industry, I would suggest reaching out to Andy from TruHealth Solutions.


For a consultation regarding drug and alcohol testing in your workplace, please call me on 0459 944 016.

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