A WORKPLACE DRUG TESTING ACT FOR AUSTRALIA · A Drug testing in the workplace Not surprisingly,...

A WORKPLACE DRUG TESTING ACT FOR AUSTRALIA

JASON GRANT ALLEN,* JEREMY PRICHARD**

AND LYNDEN GRIGGS***

I INTRODUCTION

Testing employees on a mandatory basis for alcohol and illicit drugs1 in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested2, what are the corresponding obligations vis-à-vis the employees’ privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.

This article proceeds in four parts. Section 1 reviews the literature on drug use in Australia and its estimated financial impact on Australian industry. It traces the development of workplace drug testing and outlines the employee privacy concerns that, to this day, remain the most compelling argument against the practice. Section 2 presents our tri-partite approach to justifying workplace drug testing. The elements that are drawn out by the literature, by experience, and by intuition in promoting the use of

* LLM Candidate, University of Tasmania. BA/LLB (Hons) (UTas); LLM (Universität

Augsburg); Grad. Dip. Leg. Prac. (College of Law Australia); admitted as Attorney & Counsellor-at-Law of the Supreme Court of New York and Barrister & Solicitor of the Supreme Court of Tasmania. Many thanks to Jackie Hallam for her review of the empirical literature, which has informed this paper and its footnotes, especially in Part I. Thanks also to Rohan Price and the referees for their comments on an earlier draft of this paper. Any mistakes are those of the authors.

** Senior Lecturer, Law School, University of Tasmania, BA (Hons) (UTas), BA/LLB (UTas), PhD (UTas).

*** Senior Lecturer, Law School, University of Tasmania, LLB (Hons) (Utas), LLM (Utas); admitted as a Barrister and Solicitor of the Supreme Court of Tasmania, Federal Courts of Australia and the High Court of Australia.

1 By ‘illicit drugs’, it is the use rather than the substance that is discussed; in line with the approach in international conventions on drug control, the abuse of narcotic medicines thus falls under our definition of illicit drugs. See United Nations Office on Drugs and Crime, ‘Drug Definitions’ <http://www.unodc.org/unodc/en/illicit-drugs/definitions/index.html> (accessed 26 August 2011). See Clarissa Pearce, ‘Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs’ (2008) 46(1) Alberta Law Review 141.

2 CMFEU v Wagstaff Piling Pty Ltd [2012] FCAFC 87. In this case the enterprise agreement was silent on the issue of drug testing. The Full Court of the Federal Court held that this did not prohibit a mandated random testing regime instituted by the employer. See also Endeavour Energy v CEPUA & Ors [2012] FWAFB 4998, 14 August 2012.

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workplace drug testing are: productivity, safety, and integrity. But we also note that further bases may be relevant, most notably, third-party and public economic loss and environmental harm. It will be these principled elements that we consider will provide the foundation of legislative reform. Section 3 briefly outlines the sources of current regulation in Australia, including contract law, labour law, occupational health and safety law, anti-discrimination law and industry-specific legislation and précises why, even in conjunction, they have failed to provide a normative architecture that achieves an appropriate balance between employee interests and employer concerns that compel workplace drug testing. Having outlined the extent of workplace drug testing, the framework for its existence and the concerns with current regulation, the final section sketches the principles that underlie the form and content of a Workplace Drug Testing Act and a Workplace Drug Testing Regulation that we argue is necessary.

II DRUG USE AND DRUG TESTING IN AUSTRALIA

Alcohol and illicit drug use is prevalent in Australian society. The most recent national survey, with a sample of over 26,000 people, indicated that 1 in 5 respondents drank alcohol at levels that put them at risk of harm, while 14.7% of respondents had used an illicit drug (or non-prescribed pharmaceutical) in the 12 months preceding the survey.3 Alcohol and illicit drug use is the source of significant economic costs as well as the social and human costs. A significant body of literature has grown around this question, falling into four main groups: studies that examine the prevalence of drug testing in particular workplaces,4 those that compare workplace and general community drug use,5 those measuring the impairment effect of drugs in the workplace,6 and secondary analyses of large data sets to determine the prevalence of drug use in workers by industry.7

The data suggest two things. First, they suggest that drug and alcohol use is relatively prevalent in the general Australian community. Among working Australians, the data also show different levels and patterns of consumption among industries, and a generally higher prevalence among younger workers. Secondly, the data show that the economic cost of this trend in Australian society is considerable. Collins and Lapsley estimate in a 2008 study, for example, that the combined cost impact of alcohol and

3 Australian Institute of Health and Welfare, 2010 National Drug Strategy Household Survey

report, (2011), Drug Statistics Series No. 25, Cat No. PHE 145. Canberra: AIHW. 4 For example, a 2007 study of Queensland long haul truck drivers (most reported using drugs

at work at some stage, the majority of those reported to be current users of amphetamines pharmaceutical stimulants, cannabis and cocaine): Jeremy Davey, Naomi Richards and James Freeman, ‘Fatigue and Beyond: Patterns of and Motivations for Illicit Drug Use Among Long-Haul Truck Drivers’ (2007) 8 Traffic Injury Prevention 253 at 255.

5 A 2006 study of construction industry workers found high rates of cannabis and amphetamine use as compared to general community data: Cathy Banwell, Phyll Dance, Casey Quinn, Robyn Davies, and Dean Hall, ‘Alcohol, other drug use, and gambling among Australian Capital Territory workers in the building and related industries’ (2006) 13(2) Drugs: Education, Prevention and Policy 167.

6 See Andy Smith, Emma Wadsworth, Susanna Moss & Sharon Simpson, The scale and impact of illegal drug use by workers, (Research Report 193 for the United Kingdom Health and Safety Executive, London 2004) available online at <http://www.hse.gov.uk/research/rrpdf/rr193.pdf> (accessed 4 December 2010).

7 For example Roche et al found that 4% of workers, as opposed to 2.2% of respondents not in paid employment, reported methamphetamine use in the previous 12 months: Ann Roche, Kenneth Pidd, Petra Bywood and Toby Freeman, ‘Methamphetamine use among Australian workers and its implication for prevention’ (2008) 27 Drug and Alcohol Review 334.

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illicit drugs in the paid workplace in 2004/2005 was $5.2 billion.8 According to that study, these economic costs were due to a reduction in workforce productivity and to costs associated with absenteeism.

A Drug testing in the workplace

Not surprisingly, employers have responded to the effects of drug and alcohol use

in the workplace. One of the managerial techniques they have used is workplace drug testing (‘WDT’). The practice of testing employees for drug and alcohol use in the workplace first became widespread in the United States of America. This began in the private sector but became common when it was adopted in the public sector from the early 1980s, especially in the military and among federal government employees.9 WDT spread from the public sector back to the private workplace rapidly.10 The uptake of testing by private employers was perhaps eased by the fact that many constitutional constraints do not apply to private employers.11

WDT appears to have begun in Australia through the course of the 1990s. It is now relatively widespread, though concentrated in certain industry areas. Reported decisions on WDT-based disputes come mainly from the transportation,12 mining,13

8 David Collins and Helen Lapsley, The costs of tobacco and illicit drug abuse to Australian

society in 2004/05 (Commonwealth of Australia, 2008) available online at <http://www.health.gov.au/internet/drugstrategy/publishing.nsf/Content/34F55AF632F67B70CA2573F60005D42B/$File/mono64.pdf> (accessed 5 December 2010).

9 Wide-scale drug testing began in the US military following a crash landing on the aircraft carrier USS Nimitz. See Mark A. Rothstein, ‘Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law’ (1987) 63 Chicago-Kent Law Review 683 at 703; Arthur J. McBay, ‘Efficient Drug Testing: Addressing the Basic Issues’ (1987) 11 Nova Law Review 647; Mark A. Rothstein, ‘Workplace Drug Testing: A Case Study in the Misapplication of Technology’ (1991) 5 Harvard Journal of Law & Technology 65 at 70. For a recent discussion, see Donna M. Bush, ‘The US Mandatory Guidelines for Federal Workplace Drug Testing Programs: Current status and future considerations’ (2008) 174(2) Forensic Science International 111.

10 In 1982, 10% of Fortune 500 companies subjected their employees to urinalysis for illicit drugs; by 1985 that had increased to 25% and by 1987 nearly 50%. By 1990, over 80% of companies with more than 25,000 employees performed drug-testing. See Mark A. Rothstein (1987) ‘Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law’ (1987) 63 Chicago-Kent Law Review 683 at 703; Mark A. Rothstein, ‘Workplace Drug Testing: A Case Study in the Misapplication of Technology’ (1991) 5 Harvard Journal of Law & Technology 65 at 71.

11 In the United States, public-sector employees enjoy constitutional protection under the Fourth Amendment freedom from unreasonable search and seizure; testing is only permissible on the basis of reasonable suspicion. While a blood test was always held to be a ‘search’, decisions in the 1970s and 1980s extended this principle to urinalysis. See Schmerber v California, 384 US 757 (1966); Division 241, Amalgamated Transit Union v Suscy, 538 F.2d 1264 (7th Circuit), certiorari denied, 429 US 1029 (1976); Allen v City of Marietta, 601 F.Supp 482 (N.D. Ga. 1985); Ewing v State, 160 Ind. App. 138, 310 N.E.2d (1974).

12 For example Hibbard v Qantas Airways Ltd (1996) 70 IR 353. 13 For example CFMEU v Wagstaff Piling Pty Ltd [2012] FCAFC 87; Endeavour Energy v

CEPUA & Ors [2012] FWAFB 4998, 14 August 2012; Ruddell v Camberwell Coal Pty Limited T/A Integra Open Cut Mine [2010] FWA 8436; Shell Refining (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] AIRCFB 428; Shell Refining (Australia) Pty Ltd, Clyde Refinery v Construction, Forestry, Mining and Energy Union [2008] AIRC 510; Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1999) 92 IR 179; BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australia Branch (1998) 82 IR 162.


police,14 and correctional industries.15 In contrast to the United States, and perhaps reflective of Australia’s more inchoate nature of human rights jurisprudence, WDT litigation has not featured a strong constitutional rights or civil liberties character. Rather, it has been influenced by its context in this country of labour law. While the advantage of the American approach is to highlight WDT’s privacy implications, this approach is also reflective of that country’s aggressive approach to drug law enforcement. Personal opinions will differ as whether this aggressiveness is an advantage or not, but be we do know that Australia, by nesting the issue of WDT in the mundane field of labour law, has avoided much of the heated rhetoric that drug policy can so readily attract.

B Privacy and WDT

The primary ethical concern in WDT is its potential encroachment on employee privacy. The notion of privacy is itself the subject of extensive theory.16 Privacy can be considered as embracing three separate notions: territorial privacy (in a spatial, property-related sense), personal privacy (also in a spatial sense, but embracing personal freedoms such as movement, and speech as well as bodily privacy, such as the right to urinate without observation, as well as freedom from search and seizure within a given personal sphere) and informational privacy (arising from the dignity inherent in each individual and their relationship to information about themselves).17

WDT may encroach on at least the latter two. First, personal privacy may be intruded upon through the observation of a sample being taken.18 Secondly, before providing the sample, employees will normally be asked to disclose medications taken and allied medical conditions, and to consent to the analysis of the sample and disclosure of the results to either a clinician or to another person in the organisation requesting the test.19 This may involve an intrusion of the employee’s informational privacy and an argument could be made that if the tests are medical, the results are confidential to the patient and not to the employer. 20 Lastly, WDT may also intrude into the employee’s out-of-hours conduct, extending employers’ control over their employees’ lives.21

Because of its high privacy invasiveness, the Privacy Committee of NSW recommended in 1992 that WDT be only permitted when drug impairment poses a “substantial and demonstrable” safety risk, when there is reasonable suspicion of drug use, and where testing methods allow the identification of drug concentrations capable

14 For example Commissioner of Police v Justin (1991) 55 SASR 547; Police Services Board &

Anor v Morris (1984) 156 CLR 397. 15 For example Public Service Association and Professional Officers’ Association

Amalgamated Union of New South Wales (on behalf of Sandra Gay) v Department of Corrective Services (2006) 153 IR 125.

16 For example see Anders Perrson and Sven Ove Hansson, ‘Privacy at Work – Ethical Criteria’ (2003) 42 Journal of Business Ethics 59 at 61. For a more general overview of the philosophical literature, see Ferdinand Schoeman, ‘Privacy: Philosophical Dimensions of the Literature’ in Ferdinand Schoeman (ed), Philosophical Dimensions of Privacy (Cambridge University Press 1984) at 3.

17 Australian Law Reform Commission, Report 22: Privacy (Canberra 1983). 18 Alexander Forrest, ‘Ethical aspects of workplace urine screening for drug abuse’ (1997) 23

Journal of Medical Ethics 12 at 12. 19 Ibid. 20 Conversely, if WDT results are not classified as medical records, then there is a case to be

made that WDT should be treated akin to intimate body samples in the course of a criminal investigation. The failure to characterise WDT as either a medical procedure or not leaves subjects in a legal grey zone. See Forrest, above n 18, 13.

21 See Anderson v Sullivan (1997) 78 FCR 380 at 398.


of causing impairment.22 For testing outside these parameters, the Committee recommended a blanket ban on testing in the absence of specific legislative authority. More recently, the Victorian Law Reform Commission has recommended a universal, mandatory code of practice for WDT. The code is to be drafted by a regulatory authority and is to regulate privacy and other ethical concerns.23 The National Centre for Education and Training on Addiction has also recently outlined what it sees as the procedural requirements for best practice implementation as well as substantive testing.24 But our view these commendable policy initiatives must be done in a framework of statutory regulation and protection – with these operating to balance the possibly disparate interests of employer and employee. We build upon this previous work to suggest how the enacting legislation that could support this literature should look. But first, we have the threshold question, why test for drugs in the workplace.

Although privacy issues are recognised as compelling, it seems generally accepted that WDT is justified under some circumstances. Three main arguments to justify workplace testing emerge from the literature, which are summarised under the following headings. These are productivity, occupational health and safety (‘OHS’), and integrity. We argue that legislation should establish a clear hierarchy of these justifications for WDT, according to which a different level of intrusiveness can be justified. Our suggested framework would place safety above productivity,25 and integrity above all.26

C Integrity

Drug use itself, irrespective of impairment, may be relevant to the character, honesty and integrity of select employees. The flaw in moral and drug law enforcement justifications for WDT is that they make this argument universal. It is, nonetheless, highly relevant to particular industries and employment positions. There have been some suggestions that police officers in some states have failed drug tests more often than either general motorists or AFL footballers.27 A Royal Commission into the NSW police service also found that police officers who use drugs associate with drug suppliers and this association creates opportunities for compromise, blackmail, and corruption. It considered that a police officer who uses illicit drugs is unlikely to approach the enforcement of drug laws with conviction, and that participation in any

22 Privacy Committee of New South Wales, Report No. 64: Drug Testing in the Workplace

(Sydney 1992) at 31. 23 See in particular Victorian Law Reform Commission, Workplace Drug Testing: Final Report

(Melbourne, 2005) at xiv and 69. <http://www.lawreform.vic.gov.au/wps/wcm/connect/justlib/Law+Reform/Home/Completed+Projects/Workplace+Privacy/> (accessed 30 May 2011).

24 K Pidd & AM Roche, Workplace Drug Testing: Evidence and Issues, National Centre for Education and Training on Addiction, 2011.

25 For example, according to Michael Cranford: ‘In the case of employers who are testing without regard for questions of safety, I would strongly urge that testing only be done when probable cause exists to suspect that an employee is using controlled substances.’ Michael Cranford, ‘Drug Testing and the Right to Privacy: Arguing the Ethics of Workplace Drug Testing’ (1998) 17 Journal of Business Ethics 1805 1813.

26 Space constraints prevent us from examining additional and alternative heads of justification. For example it may be argued that third party economic loss or environmental harm should be a reason for workplace drug testing.

27 Peter Mickelburough, ‘Cops top drug test fail rate’ (Herald Sun, Wednesday 17 October 2010) at 17.


form of criminal offence by a police officer is in fundamental conflict with the sworn duty of the officer to uphold the law.28

Correctional officers in prison facilities are in an equally sensitive position. In the NSW industrial relations case of Gay v Department of Corrective Services,29 Connor C remarked on the need to “ensure gaol security and to ensure that correctional officers are not compromised in their relationship with inmates.”30 That case involved a prison guard who refused to submit to a drug test.31 On appeal the Industrial Relations Commission confirmed the soundness of the policy, as the Department was a “law enforcement agency [whose] employees must be seen to be upholding the law.”32 It also noted that officers who had problems with drugs and alcohol were recognised in an Independent Commission against Corruption proceeding as presenting a security risk, recognisable by inmates, with the result that the officer could be compromised.33

Many of these considerations apply to other integrity-sensitive occupations. For example, customs officials are also uniquely positioned in enforcing drug prohibition laws, and their personal drug use is certainly relevant to their fitness to discharge that duty.34 Judicial employees, including even judges themselves, are involved in the administration of justice (including the punishment of drug offenders), and their disregard of criminal drug laws can have a negative effect on public confidence in the administration of justice.

Integrity concerns, where they are relevant, are grave and constitute a very compelling basis for WDT. It is important to ensure that they are only put forward in relation to workplaces and employees that actually require integrity checks with relation to illicit drugs. Integrity concerns would generally justify a highly intrusive WDT policy, in particular one that tested for mere presence as well as impairment.35 By the same token, however, such targeted integrity testing should follow some special protocols, in particular conforming to the principles of natural justice given the seriousness of an accusation.36 Because of its intrusiveness and sensitivity, integrity sits at the crown – mandated, detailed, and intrusive testing justifiable but only where

28 Royal Commission into the New South Wales Police Force, Final Report, Volume II: Reform

(Sydney, May 1997); see also Anderson v Sullivan (1997) 78 FCR 380 at 387. 29 [2005] NSWIRComm 1212. 30 [2005] NSWIRComm 1212 para [17]. 31 Public Service Association and Professional Officers’ Association Amalgamated Union of

New South Wales (on behalf of Sandra Gay) v Department of Corrective Services [2006] 153 IR 125 at 130.

32 Gay v Department of Corrective Services [2006] 153 IR 125 at 133. 33 The policy had been implemented following an incident in which a prison officer with a

heroin habit had been so compromised by inmates and had been coerced into bringing illegal steroids into the prison as a result.

34 In Hibbard v Qantas Airways Limited [1996] 70 IR 353, an airplane technician was found to possess a small amount of cannabis on base. The Commission was satisfied that it had been brought inadvertently to the workplace, and Hubbard was reinstated. However Qantas did argue that as an inhibitor of drug trafficking on the base, it had a valid interest to terminate his employment for the possession of a controlled substance.

35 Although most civil libertarians would advocate a reasonable suspicion basis for workplace drug testing, Anderson v Sullivan discussed the unique role of the police force in society, which is in direct tension with officers’ personal rights and liberties. Section 40A of the Australian Federal Police Act 1999 (Cth), inserted in 1999 following the decision, abrogates officers’ right against self-incrimination (i.e. refusing to submit to a drug test), and the Act also limits the application of the Fair Work Act – see s69B.

36 In her evidence in Gay v Department of Corrective Services, Ms Gay explained that the principal reason for her refusal to submit to a drug-testing regime was a failure by her employer to explain why she was being targeted and what exactly she was suspected of: Gay v Department of Corrective Services [2006] 153 IR 125 at 134.


the occupation requires and imposes an obligation of personal integrity that is higher than for the community at large. As noted, examples can be given of the police who are enforcing the drug detection laws and those where there is an acknowledgement and recognition of their position as role models within society and whom profit from their position and relationship with the community (e.g. elite athletes).

D Safety

In Australia, OHS obligations feature prominently in the justification of WDT. WDT is presented as necessary to minimise harm to workers, their co-workers, and the public. The very point of psychoactive drugs is that they alter perception of space and time. Drug impairment, therefore, is a concern for employers in safety-sensitive industries. The link between drug and alcohol use and workplace injury is becoming better established, although it is still not accepted as conclusive. Australian Bureau of Statistics data estimates that 6.4% of Australian workers aged 15 and over in 2005-2006 experienced a work-related injury or illness, and that the preponderance then continued to work in the same job.37 Studies on both the prevalence of drug use in the workforce and the impairment effect of drugs would suggest that at least some of these are related to workplace drug impairment. Data also indicate that about half of workers who die in workplace accidents have drugs or alcohol in their system at the time of death, although this is not necessarily indicative of impairment at the time.38 The OHS justification provides a compelling basis on which to test any employee that poses a real risk to the health and safety of him or herself, a co-worker or a member of the public. To this extent, it may justify an extensive and intrusive WDT programme, but only in the right circumstances.

E Productivity

One basis for WDT is to raise or maintain employee productivity. Workplace injury and workers’ compensation reduce productivity, as does sick leave and absenteeism.39 Loss may also be perceived to result from workers’ sense impairment, and decreased motivation and morale. Employers have a clear interest to get the maximum out of their employees, whereas some suggest that employees have incentives to get by with the minimum effort possible to maintain their employment.40 To the extent that drug and alcohol use is accepted to affect worker productivity, drug testing is one method for employers to promote their interests. Recreational drug use, even outside the workplace, may impact employee productivity during working hours. In one study, cognitive performance tasks were completed by non-intoxicated recreational drug users and a ‘non-drug using’ control group. Results from these tasks revealed impairments in the recreational drug users regarding alertness, mood,

37 See Australian Bureau of Statistics, Work Related Injuries, 6324.0 (Australian Government,

Canberra 2006) available online at <http://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/6324.02005-06?OpenDocument> (accessed 19 December 2010).

38 See Briohny McNeilly, Joseph Ibrahim, Lyndal Bujega & Joan Ozanne-Smith, ‘The prevalence of work-related deaths associated with alcohol and drugs in Victoria, Australia 2001-6’ (2010) 16(6) Injury Prevention 423.

39 David Collins and Helen Lapsley, The costs of tobacco and illicit drug abuse to Australian society in 2004/05 (Commonwealth of Australia, 2008) available online at <http://www.health.gov.au/internet/drugstrategy/publishing.nsf/Content/34F55AF632F67B70CA2573F60005D42B/$File/mono64.pdf> (accessed 5 December 2010).

40 See Joseph Des Jardins and Ronald Duska, ‘Drug Testing in Employment’ (1987) 6 Business Ethics Journal 3.


concentration and reaction times, memory, and reasoning tasks. Patterns of deficit emerged, dependent on the type of drug used and the frequency of use.41

The purely economic interests that underlie productivity concerns are not as compelling as employee and third-party safety concerns. Even the loss of plant and equipment is less compelling than the loss of life or limb. Further, the extent to which an employer should intrude on employee privacy in the pursuit of productivity gains is also limited by the availability of alternative human resource management strategies. As Karen Hudner of the American Civil Liberties Union argued decades ago, “any employer with a decent pair of eyes in his head would be able to tell if someone has a serious drug or alcohol problem.”42 There are also opinions that WDT may not yield productivity gains at all, because gains are eclipsed by negative impacts on morale and motivation.43

III CURRENT REGULATION IN AUSTRALIA

To date, no Australian state has enacted a statutory WDT regime. This can be contrasted with a large number of American states that have introduced or attempted to introduce specific workplace drug testing legislation.44 The nature of such regulation varies from state to state, depending on each state government’s approach to drug enforcement. By contrast, and perhaps as a consequence of Australian Federation, the legal framework in Australia has developed through the courts and Industrial Relations Commissions, especially in connection with the mining and transport industries.

Notwithstanding the absence of any general legislative regime in Australia, certain statutes and the common law have provided some legal framework for WDT. However, common law evolution is invariably incremental at best and may operate to forestall truly transformative change, and the federated nature of Australian politics makes a uniform state by state by approach unlikely, and even if possible, likely to be glacial in movement. For this reason, a nationally mandated legislative initiative may be necessary, with the corporations power of the Commonwealth used as the basis for centralist intervention, and if that is unattainable, then some form of centrally funded financial encouragement for a uniform State approach (e.g. drawing on the lessons from the introduction of national consumer legislation).

Contract law tells us that the rights of an employee are informed by her or his employment status, particularly the nature of her or his job and the terms of the

41 These impairments were noted to be ‘generally in the region of about 10% which represents

an effect size comparable to that observed when working at night, performing in noise, when the person is suffering from a minor illness such as the common cold or after ingesting a dose of alcohol that would lead to a ban from driving.’ David Collins and Helen Lapsley, The costs of tobacco and illicit drug abuse to Australian society in 2004/05 (Commonwealth of Australia, 2008) available online at <http://www.health.gov.au/internet/drugstrategy/publishing.nsf/Content/34F55AF632F67B70CA2573F60005D42B/$File/mono64.pdf> (accessed 5 December 2010) at 937-44.

42 Cited in Mark Rust, ‘Drug Testing: the Legal Dilemma’ (1986) 72 American Bar Association Journal 51 at 52.

43 See Ann Roche, Kenneth Pidd, Petra Bywood and Toby Freeman, ‘Methamphetamine use among Australian workers and its implication for prevention’ (2008) 27 Drug and Alcohol Review 334; Philip Bohle & Michael Quinlan, Managing Health and Safety: A Multidisciplinary Approach (2nd Edition, Macmillan, Melbourne, 2000).

44 For a 1987 catalogue organised by standard of suspicion, see Thomas L. McGovern III, ‘Employee Drug-Testing Legislation: Redrawing the Battle Lines in the War on Drugs’ (1987) 39 Stanford Law Review 1453 at 1513.


contract of employment.45 In theory, while employees bargain the terms of their employment and are free to promote their interests, such as their interest in privacy, we know that this is not often the case. Employees often have no real choice but to take a job, irrespective of its terms. They may also lack the knowledge, wherewithal, or simply the confidence to negotiate a contract’s terms rather than just accepting them as offered. So while directing an employee to submit to a drug test will generally be upheld as lawful and reasonable if it is in accordance with the terms of the contract of employment,46 the practical reality of lack of bargaining power between employer and employees suggests that this area of private law cannot be the basis for an interventionist justification for WDT.

Similarly, labour law suffers under the limitation that WDT is approached on a dispute-by-dispute basis, and mainly in industries where unions enjoy sufficient workforce coverage. This ad hoc approach is useful because it can tailor the policy to the particular needs of a particular industry. However it does not reduce the need for an articulation of the principles relevant to WDT generally, whether the relevant employers work cooperatively with unions or not.

The emergent norms of privacy law also provide some limits to the ambit of WDT that are less dependent on a person’s status as an employee than the law of contract or labour law. In some states, and at the Commonwealth level, privacy legislation does address collection, storage, use and disclosure of information; though nowhere does it expressly cover WDT-related information. In Victoria, for example, the Information Privacy Act 2000 (Vic) provides some relevant norms in the “Information Privacy Principles” contained in Schedule 1. While these principles do not mention WDT expressly, WDT is identified as being subject to Principles 1.1 and 1.2 in information sheets released by the Privacy Commissioner. According to these principles, information must not be collected unless it is necessary for the functions or activities of the organisation collecting it, and that information must be collected by lawful means and not in an unreasonably intrusive way.47 Principle 1.1 therefore supports our argument that WDT must be expressly justified by reference to the activities undertaken in a given workplace in order to be permissible. Principle 1.2 in turn supports our argument that the justification relied upon must also determine the limits of WDT according to the principle of proportionality, with particular regard to the interests of employee privacy. Privacy law is still in its infancy in this country, while WDT practice is developing quickly. Despite its theoretical relevance, privacy law enactments do not exist in every jurisdiction and so far have failed to tackle the challenges of WDT directly. In practice, privacy law is unlikely to provide an adequate normative framework for WDT in the foreseeable future.

OHS legislation is frequently relied upon as a basis for WDT. For example, s19 of the Work, Health and Safety Act 2011 (Qld), with this legislation part of the harmonised national reforms to this area,48 states:

(1) A person conducting a business or undertaking must ensure, so far as is

reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and

45 See Patricia A. Greenfield, Ronald J. Karren and Jane K. Giacobbe, ‘Drug Testing in the

Workplace: An Overview of Legal and Philosophical Issues’ (1989) 2(1) Employee Responsibilities and Rights Journal 1 at 2.

46 Though this is not necessarily so; see Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 29 per Sheppard and Heerey JJ.

47 Office of the Victorian Privacy Commissioner, Information Sheet 04.10 (November 2010) available online <http://www.privacy.vic.gov.au/privacy/web2.nsf/files/privacy-in-the-workplace/$file/info_sheet_04_10.pdf> (accessed 16 February 2011).

48 See <www.safeworkaustralia.gov.au> (accessed December 10, 2012).


(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Drug impairment on the part of the employee him or herself, or on the part of a

fellow employee could certainly constitute a risk to health and safety to which employers must respond. But what OHS legislation doesn’t do is provide guidance on the desirable characteristics of a workplace drug testing policy, nor does it mandate or proscribe any particular features. In essence it provides an obligation but no regulation. OHS as a justification does suggest, implicitly, some limits. WDT should only go so far as is reasonably necessary to address the particular OHS risks in the particular workplace. However this principle flows as a matter of logic rather than from the text of any OHS enactment. As a source of norms to regulate WDT practice, OHS law in its present state is also inadequate.

Finally, as regards generic legislation, state and territory anti-discrimination laws are preserved by s27 of the Fair Work Act 2009 (Cth). The Discrimination Act 1991 (ACT), to cite an example, defines disability to include “an illness or condition which impairs a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour.”49 The Anti-Discrimination Act (NT) defines “impairment” to include “psychiatric or psychological disease or disorder, whether permanent or temporary.”50 The Fair Work Act itself is intended to “take into account” Australia’s international labour obligations.51 These international obligations include the International Labour Office (‘ILO’) Code of Practice, Management of alcohol- and drug-related issues in the workplace (1996),52 which asserts that alcohol and drug related problems should be considered as “health problems” and should be dealt with “without any discrimination” like any other health problem at work.53 Workers who seek treatment and rehabilitation for alcohol or drug related problems should not be discriminated against and should enjoy job security and the same opportunities for advancement and transfer. If the ILO approach of treating drug and alcohol addiction as a health problem is followed, then drug and alcohol addiction could perhaps be subsumed under some of the state and territory definitions, and anti-discrimination law could provide a source of norms to regulate workplace drug testing. The Queensland legislation even refers to some ILO instruments in its preamble.54 Our view is that the focus of anti-discrimination is, understandably, on the person said to have been discriminated. It does not seek to balance others’ right to safety and the public interest in the integrity of law enforcement officials.

As regards industry specific legislation, both the Commonwealth and some states and territories have enacted WDT-specific regulations for some industries, such as aviation,55 and rail transport.56 These regulations provide a view of what different

49 Section 5AA(1)(f). 50 Section 4. 51 Section 385(3)(a). 52 International Labour Organisation, Management of alcohol- and drug-related issues in the

workplace: An ILO Code of Practice (International Labour Office, Geneva 1996). For discussion, see also Behrouz Shahandeh and Joannah Caborn, ‘Ethical issues in workplace drug testing in Europe’ (Seminar on Ethics, Professional Standards and Drug Addiction, Strasbourg, 6 – 7 February 2003).

53 International Labour Organisation, above note 52, at VII. 54 See Anti-Discrimination Act 1991 (QLD). 55 See Civil Aviation Safety Regulations 1998 (Cth) Part 99. 56 For example, see the Rail Safety Act 2008 (NSW) and the Rail Safety (Drug and Alcohol

Testing) Regulation 2008 (NSW).


legislative bodies have deemed appropriate to different industries in the context of WDT. However they are, individually and collectively, inappropriate to serve as a general template for a WDT statute. Though superficially attractive, the approach of cutting and pasting their provisions into a more general enactment is inadvisable for three reasons.

First, while they do provide standards by which testing is to occur, their basic intent is generally facultative rather than restrictive. The sort of WDT statute advocated in this article would be animated by the opposite intention. Secondly, they exist only in very safety-sensitive industries. If the testing regimes mandated by these instruments were amalgamated, they would be too privacy invasive for industry generally. Thirdly, the regulations all take a highly detailed, prescriptive approach. For example the Civil Aviation Safety Regulations 1998 (Cth) Part 99, which regulates WDT, is over 70 pages long. Such a prescriptive approach is unsuitable for general application, across industries. It is also difficult to amend as testing methodologies change. A proscriptive, principle-based enactment is preferable, from which market practice can develop with detail supplied by the courts and tribunals from time to time.

IV A WORKPLACE DRUG TESTING ACT FOR AUSTRALIA

What we know so far is that drugs are a prevalent issue within society, the current laws are inadequate and in the views of the authors, the core ingredients of any mandated workplace drug testing program should be, in order, integrity, safety and productivity. With these elements as our building blocks, in this section, we sketch a proposal for a WDT statute that we believe would be suitable to regulate WDT in Australia, for example in the form of uniform model legislation to be adopted by each state and territory. This falls short of an attempt conclusively to define the form and content of such an act. What we do suggest is a defensible form and the minimum range of matters that must be included for any such regulation to be considered an adequate response to the problems posed by WDT. If this proposal does nothing more than to stimulate response about the most appropriate form, the scope of matters to be included, or the substantive standards that should apply to WDT in this country, then our purpose in writing this section will have been achieved.

In form, we suggest the familiar model of a short, principle-based act accompanied by more detailed and prescriptive regulations. The act would state the principles that govern ethical WDT – in other words, delineate acceptable and unacceptable WDT practice – and provide a reference point to determine industrial relations disputes. Regulations would then prescribe how WDT is to proceed, that is to state conclusively the manner and method of permissible testing, with reference to the relevant technical information, and the consequences of a positive test result.

A A Workplace Drug Testing Act: the Principles of WDT

We propose that WDT should occur only within the parameters set by the

following seven principles. These norms have emerged from the academic literature and from the sources of law explained above, however nowhere are they expressed together in a coherent manner specific to WDT. They amount essentially to notions of natural justice that should guide all institutional interactions with individuals.

1. WDT must be legitimately related to recognised head(s) of justification; 2. WDT must be proportionate to the head(s) chosen, taking the least intrusive

form currently available to do the job;


3. WDT results must be actually used for the purpose they were gathered for, and not for any corollary purpose;

4. WDT must be reasonably effective at its stated purpose, and be more effective than less privacy intrusive managerial approaches;

5. Different consultants must be engaged to design a policy and conduct testing; 6. Independent confirmation and appropriately graded sanctions must always be

required before termination or criminal referral; 7. Employees must have access to all relevant data relating to their samples.

The suggested approach to WDT presented in subsection (b), below, is the

practical application of these principles to the ‘nuts and bolts’ of WDT. While it is beyond the purpose of this paper to suggest how this should be implemented, we propose that the legislation specifically endorse the possibility of mandatory codes of conduct, should voluntary codes with employers and industries not be possible.

B A Workplace Drug Testing Regulation: the Practice of WDT

In practice, the fairness and reasonableness of a WDT policy will be determined

by choices made about apparently managerial or technical matters: which employees to test, when to test them, what to test for using which methodology, and what to do if an employee tests positive for alcohol or drug use. In the current, loosely regulated environment, employers have a wide range of choice open to them. The purpose of WDT legislation would be to limit these choices, with reference to the three acceptable heads of WDT, within parameters that protect employee privacy while promoting legitimate business and public interests. It is beyond the scope of this article to detail what substantive and procedural standards would be appropriate to a WDT regulation, however it does bear to flag the range of possibilities and make some passing suggestions about what kind of WDT features might be appropriate to each head. 1 Who to Test

We have argued that employees should only be subjected to WDT in relation to the three heads of justification developed above; that is on the basis of integrity, safety and productivity concerns. More importantly, regulations should develop a rational process of risk assessment that requires employers to articulate exactly how each employee falls under the head or heads asserted. The logic of risk assessment demands at least that a risk be identified and quantified, its likelihood balanced against its gravity should it occur, before the alternative responses and their costs be weighed and an appropriate response formulated. Regulations should develop a formula of risk assessment appropriate to WDT.

On this basis, employees can be divided into logical classes for the purposes of deciding when and how they should be tested, and for what. Each class of employee will present a different risk, which warrants a different response. Currently, however, there is indication that market practices are developing in exactly the wrong direction. According to Jamie Hershman of Medvet Laboratories,57 many employers are instituting business-wide drug testing policies in an effort to be “more equitable”

57 See <http://www.medvet.com.au/corporate/index.php> (7 September 2010). Medvet supplies

testing services to around 200 companies in various industry sectors such as aviation, mining, energy generation and shipping.


across employee categories.58 The serious problems with this approach lie in the fact that testing one class of employees in a certain manner may be justified, whereas testing another class in the workplace in the same manner may not.59

2 When to Test

Once a class of employees has been identified, it falls to decide when they should be tested, and on what basis. Much of the privacy and civil liberties literature on WDT focuses on the requirement for reasonable suspicion of drug use as a standard to justify WDT. As a standard dictating when to test, it is reasonably protective of employee privacy, which perhaps explains its broad appeal. In Australia, many forms of testing are permissible, including at-will testing, random testing, and routine testing (for example on clocking on, before a dangerous activity or after a workplace incident). Extant legislation and the authorities suggest that these standards are reasonably well entrenched in their sphere of application. As such, we suggest that their use should be prescribed according to the three heads of WDT justification.

3 How to Test

WDT methodologies now available include blood, urine, sweat, hair, breath and

oral fluid analysis. Uses and applications vary, from detecting alcohol only to detecting all substances, and different methods involve various levels of intrusiveness.60 For example, a blood test involves physical intrusion into the tissue of the employee, but does not involve such a great invasion of personal privacy as an observed urine sample collection. On the other hand a hair sample involves no bodily privacy intrusion, but opens an especially long ‘time window’ into drug use, and may result in a greater intrusion on the worker’s informational privacy.61 It may also be easier to undertake covertly, without the employee’s knowledge or even nominal consent.

Prescribing the appropriate testing method or combination of methods is crucial. So too is keeping policies up to date with changing technology, in accordance with the principles outlined above. In Shell Refining,62 for example, the main issue in dispute was whether it would be “unjust or unreasonable” for Shell to use urinalysis now that of oral fluid testing is available, which is less invasive of privacy.63 We suggest that the more invasive forms of testing such as urine, hair and blood analysis be reserved for integrity testing. Oral fluid testing and breath analysis would appear to be sufficient to address OHS concerns, as the focus is on present impairment rather than past use. As

58 As reported in Jill Stark, ‘Workplace drug testing boom sparks fears of false positives’ (The

Sunday Age, 10 January 2010) accessed at <http://www.theage.com.au/national/workplace-drug-testing-boom-sparks-fears-of-false-results-20100109-m00n.html> (25 August 2010).

59 The same flawed argument seems to have been rejected by the AIRC, which held in Shell Refining that, as WDT should intrude so little as possible into employee privacy, ‘there is no basis to conclude that it would be unjust or unreasonable for some employees to be subject to testing and not others, if there is an objective reason for this distinction.’Shell Refining (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] AIRC 510 para [127].

60 Libby Topp, ‘Drug Testing: How it’s done’ (2009) 7(2) Of Substance 24. 61 John Strang, Joseph Black, Andrew Marsh and Brian Smith, ‘Hair analysis for drugs:

technological breakthrough or ethical quagmire?’ (2006) 88(2) Addiction 163. 62 Shell Refining (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2008] AIRC 510 (25 August 2008). 63 In Shell Refining (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2008] AIRC 510 (25 August 2008), the main issue in dispute was whether it would be ‘unjust or unreasonable’ for Shell to use urinalysis instead of oral fluid testing, which is less privacy invasive.


oral fluid testing and breath analysis are currently the least intrusive methods available, we suggest that these also be prescribed for productivity-based WDT.

The question ‘how to test’ also encompasses considerations such as the site of testing, product standards and sample management. In relation to the first, tests can be conducted at workplaces themselves, or in laboratory settings. The former are inexpensive and easy to administer, but limited in determining when the drug was consumed. Workplace tests are also limited by the type of drugs they can currently detect. The latter are more accurate, detecting a wider range of drugs and degrees of drug concentration but are also more expensive and time consuming. We suggest that integrity-based testing be limited to the laboratory setting, while OHS and productivity testing be allowed to take place in the workplace.

In relation to product standards, we suggest that Australian Standard registered products be prescribed for WDT generally. As the decision in Shell shows, this accords with current, responsible market practice anyway. The practice should be mandated, however, especially to prevent employers in smaller workplaces (or in workplaces with less union involvement) from using sub-standard products from the proliferation of web-based providers.

In relation to the last matter, of specimen and data management, the choice of where to test will also determine chain of supply concerns, such as confidentiality management and contamination.64 As the stakes are highest for employees tested on the basis of integrity concerns, regulations should prescribe the most rigorous standards in relation to his head of justification including laboratory-based testing, strict specimen handling standards and blind confirmation. 4 What to Test For?

We suggest that WDT should test for alcohol and any drug used illicitly. In some

industries, for example medicine and pharmacy, the abuse of prescription medicines may be relevant to an employee’s fitness for the job. In such cases a WDT policy based on integrity risks would be incomplete if it tested only for illicit drugs and not for pharmacy and prescription medicines, which accords with our approach to the definition of illicit drugs themselves. In relation to the OHS head, however, more is needed. WDT should test for licit drugs that could impair employees’ ability to work safely whether legal or illegal. Many prescription medications also contain narcotics such as opiates that can, especially when misused, impair a worker’s ability safely to perform his or her job. If OHS risks are identified as the basis for a WDT policy, a compelling argument exists for testing for licit substances, whether used properly or abused, that could result in an OHS risk. In relation to productivity concerns, we suggest that testing be limited to alcohol and illicit drugs. If an employee is using (as opposed to abusing) narcotic medication, and this is affecting his or her productivity, employers must respond with other managerial techniques and should not be allowed to require submission to WDT.

The most technically complicated aspect of WDT is the question whether to test for the mere presence of drugs or drug metabolites, or whether to require some threshold that corresponds to likely impairment. Two problems arise in this context. First, determining whether a positive test result indicates drug misuse is not straightforward.65 For example, pharmacy and prescription medicines such as codeine and oxycodone can cause a positive urinalysis result even days after taking them. In

64 United States Substance Abuse and Mental Health Services Administration, ‘SAMHSA

Proposes Updated Rules for Federal Workplace Drug Testing’ (SAMHSA Media, 6 April 2004).

65 Forrest, above n 18, 13.


levels that are well below those causing impairment, employees’ right to privacy suggest that an employer has, prima facie, no place to ask what caused the positive result. Secondly, current testing methods are generally unable to determine degree of intoxication, and in turn impairment, as opposed to the mere presence of a substance in an employee’s body.66 The effect of alcohol on different individuals does vary, but broadly accepted benchmarks apply, such as the 0.05% blood alcohol limit in Australian states.67 No such accepted standard exists for substances like marijuana or amphetamines, and given the illicit nature of these substances accurate “dosage” is impossible.68 Sometimes the issue is further complicated by time lags between ingesting the substance and testing as well as the presence of other substances: especially in the case of cannabis, drug metabolites may be found in urine many days after the last use,69 and therefore long after any level of impairment relevant to employment productivity or OHS.

Again, the answer to this question must flow from the nature of the justification chosen: where mere presence is relevant to WDT, as in integrity based testing, no threshold should be required. However, we suggest that some threshold beyond mere presence be required in the case of OHS based testing. This runs counter to current practice, a number of authorities and industry-specific legislative instruments, but seems to be more reasonable in light of the nature of OHS as a justification. For productivity based testing, we suggest the same approach.

V AFTER A POSITIVE RESULT

The consequences of a positive drug test result can range from dismissal and referral to criminal authorities (in the case of illicit drugs) to sick leave and referral to counselling or an employee assistance scheme. There is a growing view in the literature that WDT should be part only of an holistic approach to OHS management, which usually involves consultation with unions (where they exist) to develop a regime

66 Ann Roche, Petra Bywood, Kenneth Pidd, Toby Freeman and Tania Steenson, ‘Drug testing

in Australian Schools: Policy implications and considerations of punitive, deterrence and/or prevention measures’ (2009) 20(6) International Journal of Drug Policy 521; Peter Holland, ‘Case Study: Drug Testing in the Australian Mining Industry’ (2003) 1(2) Surveillance and Society 204; International Labor Organisation, ‘Coming clean: drug and alcohol testing in the workplace’ (2006) 57 World of Work 33; Joe Catanzariti, ‘Drug and alcohol testing at work: what are the legal issues?’ (2003) 41(7) Law Society Journal 42; Emma Goodwin, ‘Testing Times- drugs, alcohol and the workplace’ (2006) 80(12) Law Institute Journal 42;

67 See Jeremy Prichard, Alison Matthews, Raimondo Bruno, Katherine Rayment and Helen James, ‘Detouring Civil Liberties? Drug-Driving Laws in Australia’ (2010) 19(2) Griffith Law Review 330.

68 See however Clarissa Pearce, ‘Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Problems’ (2008) 46(1) Alberta Law Review 141 at 161 on the question of marijuana detection technology and the question of accurate, present impairment testing. Given their more accurate dosage, there are some guidelines on pharmaceutical drugs and their probable impairment of driving ability. See International Council on Alcohol, Drugs and Traffic Safety, Categorisation System for Medicinal Drugs Affecting Driving Performance (2007), available at http://www.icadts.nl/reports/medicinaldrugs1.pdf (accessed 15 December 2010); see also Joris Verster and Monique Mets, ‘Psychoactive Medication and Traffic Safety’ (2009) 6 International Journal of Environmental Research and Public Health 1041.

69 Forrest, above n 18, 13.


appropriate to the workplace.70 Education and rehabilitation are usually key components of such a regime.71 This approach should be encouraged by WDT legislation, rather than discouraged. Further, the principle that has emerged from industrial relations disputes that graded sanctions and access to sick leave should be available in conjunction with WDT.72

In this light, it is clear that criminal referral must be restricted to limited, defined circumstances. This should be determined by reference to two factors: first, the type of substance involved, and secondly, the head of justification relied upon by the employer. For example, criminal referral might be appropriate for a police officer testing positive for an illegal substance, but not for alcohol; on the other hand, an office employee tested on the basis of productivity should not be referred to police even if he or she tests positive for illicit drug metabolites. We suggest that criminal referral be generally limited to integrity-based testing and high-level OHS concerns.

VI CONCLUSION

WDT is a defensible response to certain heads of concern, including productivity, OHS and integrity. Other concerns, while perhaps relevant, are by their nature too broad and are ill-suited to circumscribe fitting parameters for WDT practice. Other concerns are inappropriate as a basis on which to test workers for drug and alcohol use, in particular criminal drug law enforcement. WDT theory and practice must continue to reflect its context of employment law by remaining focussed on factors truly relevant to the employment relationship.

Whatever those parameters are, WDT must occur within parameters that are more clearly specified. The limits of WDT are to be determined by reference to employees’ privacy interests, on the one hand, as against employers’ legitimate interests and public interests on the other. We have suggested that these interests can be organised under the three heads of justification we have identified. Every justification is, by nature, limited; by starting with the justification and working through a rational process of risk assessment, it is possible to define in each case just how far the risk identified will carry the argument for WDT into the realm of employee privacy. The nature of this task means that the answer will change dependent on the circumstance of each particular workplace, but basic standards can be established across the board.

For this reason, legislation is desirable in Australia to regulate the growing WDT industry. While the traditional sources of law have provided some normative framework for WDT practice, they are insufficient to ensure that WDT respect employee privacy while achieving its legitimate goals. In Australia, one of the major arguments for WDT legislation is the argument to certainty. It is undesirable to continue testing the acceptable parameters of WDT in the courts and tribunals. Industrial dispute litigation is disruptive and expensive. The situation is not ideal for employees, whose rights to privacy are without adequate protection. Likewise, employers are liable under OHS norms if they allow employee drug use to compromise workplace safety, yet they are also exposed to risk if the WDT programme they implement is too intrusive.

70 Bill Mansfield, ‘Impairment of Employees – the Union View’ (2001)

<http://www.actu.org.au/public/news/1056670370_26248.html> (accessed 19 December 2010).

71 Peter Holland, Amanda Pyman and Julian Teicher, ‘Negotiating the Contested Terrain of Drug Testing in the Australian Workplace’ (2005) 47(3) The Journal of Industrial Relations 336.

72 Caltex Australia Ltd v Australian Institute of Marine and Power Engineers; The Australian Workers' Union [2009] FWA 424 at [114].


As to form, the legislation we advocate should take the form of a short, proscriptive, principle-based text. Following the OHS model, this could take the form of nationally uniform state legislation, or commonwealth legislation relying on the corporations’ power. Prescriptive WDT standards, in turn, should be provided in a regulation, reviewed and updated routinely by delegated authority. The text of the Act should centre on establishing the acceptable heads of WDT and the basic principles applicable to it. The Regulation should provide when employees may be tested and reference this back to the relevant head(s), what they may be tested for, how this is to be done and what may happen to an employee who fails a test. While prescriptive, this schedule should remain so concise as possible, in contrast to the industry-specific legislation that exists to date. It must be capable of general application across industries and employment sectors, and the more prescriptive detail that is provided, the less flexible such an instrument becomes.

One again, the science of testing has outpaced the legal response. We don’t seek to conclude the discussion, merely begin it. But our approach of a national response to a national problem through uniform state legislation presents, we suggest, a coherent, defensible and logical response that balances the needs of the employee working for, not at, the employer.

A WORKPLACE DRUG TESTING ACT FOR AUSTRALIA · A Drug testing in the workplace Not surprisingly,...

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