Court gives business the go-ahead to drug and alcohol test staff

The Federal Court has upheld an employer’s right to subject workers to mandatory drug and alcohol tests in a judgment welcomed by business groups and criticised by unions.

The full bench of the court yesterday ruled against the Construction, Forestry, Mining and Energy Union, which had fought against the testing on a Victorian roadworks site.

“It seems clear enough that mandatory testing is a surer method of determining who is affected by alcohol and therefore who is at risk (of injuring himself or others) than relying on self-identification or the inclination of one worker to inform on another,” Judges Robert Buchanan and Anna Katzmann held.

The CFMEU was appealing against a decision of Fair Work Australia’s full bench which found there was nothing in a collective agreement to prevent Wagstaff Piling requiring its employees undergo random drug and alcohol testing.

Wagstaff Piling was a contractor for Thiess on Melbourne’s Ring Road improvements, and had agreed to comply with Thiess’ “fitness for work” policy, which included random testing.

Ashley Duncan, Victorian manager for Wagstaff Piling, told SmartCompany the company would prefer not to comment.

The decision was welcomed by business groups, including the Australian Industry Group, which said occupational health and safety was “the highest priority” of responsible employees.

“It is vital that employers be permitted to implement fair and reasonable safety policies in hazardous work environments which are aimed at protecting workers, members of the public and other persons, like the policy implemented by Thiess and its subcontractors on the Tulla Sydney Alliance Project,” said AIG chief executive Innes Willox in a statement.

“In hazardous work environments nowadays, there is a wide acceptance in Australia and overseas that an appropriately structured and implemented alcohol and drug testing regime is an important and reasonable control mechanism to address the substantial risk of employees working while under the influence of alcohol or drugs.”

Dan Murphy, spokesperson for the CFMEU, told SmartCompany the union did not accept that construction workers are more prone to drug and alcohol problems than any other section of society.

“Employers pushing for stricter testing regimes have never proven that their introduction is justified by increased health and safety problems caused by higher levels of drug and alcohol use,” says Murphy.

Murphy says if employers were “really serious” about impairment of workers and its risks to health and safety, they would address other causes, not just drugs and alcohol.

“The selective interest of companies like Thiess in worker impairment shows they are not genuine,” he says.

“If the issue was addressed in a holistic way and they had to also consider the risks to safety caused by fatigue arising from working regular 12 and 14 hour shifts, they would soon lose interest in the matter.”

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