FAIR WORK BUILDING & CONSTRUCTION DRUG & ALCOHOL TESTING UPDATE
In our previous Drug & Alcohol Newsflash we highlighted that as of 1st February 2016 the Building Code 2013 now mandates Drug & Alcohol Screening.
The Fair Work Building & Construction have commenced the final stage of its 3 phase implementation of the new drug and alcohol requirements. Fair Work Building & Construction are now actively auditing contractors fitness for work policies to assess the practical implementation of drug & alcohol testing onsite. During these reviews they have found consistent issues of non-compliance with the Building Code – and consequences have been harsh! See below for a list of non-compliances generated thus far.
Contact us now for more information on how we can assist you in being compliant.
Non-Compliance issues with the Building Code
- failing to meet the minimum, frequent and periodic testing (at least once per month) requirements of the workforce in the required numbers;
- relying on impairment testing rather than using an objective medical testing method for random testing. Impairment testing is a subjective testing method;
- failing to ensure that contractors are subject to the zero tolerance (subject to detectable levels) requirements of the Building Code;
- failing to list the required substances that will be tested for;
- failing to outline procedures for targeted testing of higher risk activities;
- failing to outline the procedures relating to employees being prevented from returning to work until they are fit to return to work;
- failing to outline procedures for the selection of personnel to be tested;
- failing to outline how those on site (including the employees of the principal contractor, subcontractors and their employees and others) will be required to comply with the relevant fitness for work policy; and
- requiring subcontractors to pay for training.
All construction projects that meet a threshold for Commonwealth funding are required to have a fitness for work policy that includes mandatory random drug and alcohol testing for those on site undertaking building work. Contractors must ensure their policy is compliant and that the testing regime onsite reflects that policy. The examples listed above would render a contractor’s fitness for work policy non-compliant with the Building Code and may ultimately lead to exclusion from Commonwealth funded building work. Further information on the drug and alcohol testing under the Building Code can be found here
This month we wanted to dedicate this enewsletter to drugs and alcohol in the workplace. If you saw our recent Newsflash on the amendment to the Building Code 2013, to include Head Contractors that must now have a “comprehensive
policy for managing drug and alcohol issues in the workplace, including mandatory testing and a zero tolerance for drugs and alcohol”, you can understand this is an issue that reflects a concern across the country and the great importance
of a having a comprehensive policy in place.
Editor in Chief from the Health & Safety Handbook, Michael Sellinger wrote:
“The introduction of changes to the Building Code follows on from a number of inquiries that have revealed widespread use of amphetamines and other unlawful drugs in the construction and other industries."
- A report prepared by the Australian Crime Commission in 2015 called The Australian Methylamphetamine Market – the National Picture
- A parliamentary joint committee on law enforcement taking submissions in its inquiry into crystal methamphetamine (Ice)
- Media reports of a former paramedic in Tasmania who worked under the influence of Ice for five years and was never drug tested at work
The timing of the introduction of changes to the Building Code coincides anecdotally with a growing trend of employers across Australia introducing or refining their drug and alcohol testing procedures. They wish
to ensure that their workplaces remain safe from the risks posed by workers operating under the influence of drug and alcohol.
- The risk of misuse of drug and alcohol in your workplace needs to be assessed and appropriate procedures put in place to minimise that risk.
- For some organisations, the risk will be low and limited to certain circumstances where alcohol may be provided to staff as part of a work-sponsored activity.
- On the other hand, organisations that have a larger or more diversely spread workforce that is not as easily monitored may have a greater risk of misuse of drug and alcohol. This will again depend a lot on the existing culture of the organisation.
- The introduction of any drug and alcohol policy has to be carefully balanced with the privacy issues associated with testing procedures.
- It is also important to ensure that any testing undertaken, either directly or through a third party, is effective and accurate given consequences that flow from the finding of such misuse, which include disciplinary action and, in some cases, criminal proceedings.”
Here is an example of a case where the organisation has a strong policy in place, this was taken from an article by Jeff Salton, Editor for Health & Safety Bulletin on 1st October 2015:
“Unfortunately, some employers might find themselves with a workplace health and safety issue if an employee fronts for work after the long weekend a little worse for wear, potentially placing themselves, others workers or the public in danger.
It might sound a bit far-fetched but that’s what happened at the Kimberley Ports Authority this year. A welder failed a random breath test at 8.30am after admitting to consuming 20 cans of full-strength beer over 12 hours on Australia Day. He had gone to bed at 10:30pm and attended work on January 27 at 6am.
Despite the worker saying he felt fine, he blew 0.026% and was in breach of the company’s 0.00% fitness for work (FFW) policy.
The Kimberley Ports Authority (KPA) dismissed the welder and the Fair Work Commission upheld the company’s decision.
Before Commissioner Danny Cloghan, the welder argued his breach of the policy was a first-time offence and a genuine mistake, the breath test uncovered only a minor alcohol reading which posed no safety risk, and his dismissal was disproportionate.
But KPA maintained that its actions were consistent with its policy, especially given the potential safety risk, coupled with the fact that the welder had a blood alcohol reading of 0.020% nearly three hours after the initial test.
It claimed that its workforce was aware that two employees had been dismissed in August last year for similar breaches, and a third was sacked for a first-time offence in December.
The commissioner noted that KPA’s firm position on safety was further illustrated by its provision of self-testing breath alcohol equipment at the worksite, which the welder had failed to use on the morning he was randomly tested.
“Alcohol and safety on the waterfront do not mix. I understand, as I am sure the employees at the KPA understand, the potential for workplace accidents increases when alcohol is in the blood stream of employees.”
“The FFW Policy’s simple objective is to make the workplace safer, the Policy is one way of achieving that objective. [The welder] breached the Policy in very disapproving circumstances.”