The legal warning comes after Fair Work Australia found late last week that employers in the Victorian construction industry will be able to make employees participate in drug and alcohol tests, despite unions objecting the move.
Contractors Thiess and Wagstaff Piling were appealing an earlier decision that found mandatory testing was not required, as this was not part of any workplace agreement. However, the full bench of Fair Work found that the request was "reasonable".
"The risks to employee safety posed by drug and alcohol use have long been recognised by this Tribunal and compulsory drug and alcohol testing is, of itself, not so extraordinary that it could not be argued to be a reasonable employer instruction or that it could be regarded as an extra claim."
"We therefore uphold the appeal and determine that the Commissioner's conclusion was without proper foundation."
The Construction, Forestry, Mining and Energy Union has signalled it is considering an appeal, while the Master Builders Association has welcomed the move.
Legal expert Peter Vitale says while mandatory drug and alcohol testing is common among industries where employees handle heavy and dangerous machinery, employers still need to be aware of their obligations.
"The critical thing for employers, is to demonstrate that the usage of drugs and alcohol would impair the proper performance of that employee. That could range from a very low tolerance in industries where heavy and dangerous machinery is being used."
"That would include construction, mining and manufacturing. In these circumstances employers are usually given a lot more latitude by Fair Work to enable things like random testing."
However, Vitale says employers must still have proper policies laid out.
"Employers need to make sure they have a detailed policy in place explaining exactly why the drug testing is taking place, or may take place, and when exactly it would occur."
"If they don't, there may be a real issue about, in the context of an unfair dismissal, whether an employer could rely effectively on the results of that test."
But while businesses in the construction and mining sectors may use regular drug and alcohol testing, Vitale says there isn't any reason why businesses in an office wouldn't be able to do the same – as long as they justify it.
"It's quite widespread in the United States. You just have to justify it on occupational health and safety grounds, or on the grounds that it would impede work."
"This is an occupational health and safety issue, not just a disciplinary issue, in the sense of being the primary instigator of this sort of testing. The two aspects need to be considered – it's not just about discipline."
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