In September 2015, the Building Code 2013 was amended to incorporate mandatory drug and alcohol testing for Commonwealth funded construction projects. From 16 October 2015, head contractors must have a comprehensive fitness for work policy in place to manage alcohol and other drugs which includes mandatory testing.

The fitness for work policy

Broadly, the fitness for work policy must:

  • address how those on site will be required to comply with the policy, whether through contract or some other enforceable means;
  • outline the detection method to be used – the Building Code does not stipulate a particular objective medical testing method (such as urine or saliva testing) to be used on the project;
  • require testing for alcohol, opiates, THC, cocaine, benzodiazepines, amphetamine and methamphetamine; require frequent testing (at least once per month) of the workforce (both construction and site office workers) with procedures for the targeted testing of higher risk activities; and
  • cover how workers who attend for work affected by alcohol or drugs will be counselled or assisted (apart from any disciplinary process that may apply).

Under the new regime, there is zero tolerance for the presence of drugs and alcohol. A person who returns a positive result for any of the substances listed above will be deemed not fit to work (even if they are not impaired by the ingestion of drugs and alcohol – see our colleagues’ earlier blog on this topic).

Risky business

When announcing the changes, former employment minister Eric Abetz highlighted the risky nature of construction projects saying:

 “The construction industry is a high risk industry where the risks associated with the use of heavy machinery, mobile equipment, working in congested areas and working from heights, are accentuated by the effects of alcohol and drug use”.

Drug and alcohol policies have recently come under the spotlight in environments with similar safety concerns as the construction industry. Examples can be found in recent decisions of the Fair Work Commission. For instance:

  • In September, a Full Bench upheld the dismissal of a ferry master who tested positive for marijuana in breach of the employer’s “zero tolerance” drugs and alcohol policy after an accident causing little damage. A critical factor in this case was the high risk nature of the activity and the employer’s responsibility for public safety. The dismissal was upheld even though there was no evidence of impairment; the ferry master’s drug use arose from the need to sedate a painful shoulder; there was no link between the drug test and the accident; and the ferry master had 17 years’ satisfactory service.
  • Another Full Bench decision upheld the use of both saliva and urine testing in a coal export terminal because of the benefits of dual testing (despite privacy concerns for the workers). The dual testing enabled the employer to meet its health and safety obligations towards employees and contractors by eliminating, as far as possible, the risks that employees impaired by drugs and alcohol bring to a workplace where workers are engaged in high risk activities.

The changes to the Code are the next step in the evolution of drug and alcohol policy in the construction industry and will be welcomed by many employers.