Challenges of working in the agribusiness sector
Work health and safety (WHS) is a serious issue in agribusiness. There are significant safety challenges in the agricultural industry created by:
- remote work locations – making the impact of any WHS incident potentially more severe and the risks of fatigue pronounced;
- fatigue associated with long working hours during peak seasonal work periods;
- use of heavy machinery which creates risks in both the use and maintenance of that machinery; and
- the reliance on seasonal and contractor workforces which creates difficulties in developing and maintaining a safety culture based on best practice.
These safety challenges are well documented in SafeWork Australia’s Work-related injuries and fatalities on Australian farms report, which found that 71% of fatalities in the agricultural industry involved vehicles, particularly tractors and their attachments.
In response to these challenges, we have seen our clients develop a range of systems and policies designed to minimise WHS risks. One policy area which has received considerable attention in the Fair Work Commission (Commission) is the application of drug and alcohol policies, particularly where an employer has a “zero tolerance” approach to drug and alcohol policy breaches.
Case study: Effectiveness of zero tolerance drug and alcohol policies
Zero tolerance drug and alcohol policies attempt to meet the WHS challenges outlined above by setting standards of employee conduct which prohibit employees being under the influence of drugs or alcohol at work.
We have seen employees face difficulties when they attempt to enforce compliance with drug and alcohol policies and promote a positive work health and safety culture through disciplinary action against employees (including termination).
A series of Commission decisions have inconsistently determined this issue. Some decisions find that even though a valid reason for termination may exist (employees creating a risk to health and safety), in totality a decision to terminate the employee is harsh, unjust or unreasonable. For example, in John Ingham v Metro Quarry Group Pty Ltd  FWC 6472, Mr Ingham breached Metro Quarry’s zero tolerance drug and alcohol policy and demonstrated a past unwillingness to comply with Metro Quarry’s attempts to develop a safety culture. Despite finding that a valid reason for termination existed, Commissioner Bisset found that the company’s policy did not specify that dismissal without notice would result if the policy was breached, and as a result the decision to terminate Mr Ingham’s employment was harsh and unjust. On appeal the decision was reversed but the difference in outcome illustrates the difficulties for employers and inconsistent approach taken in this area.
In a number of recent decisions the Commission appears to have acknowledged the WHS challenges faced by employers and found it is not unfair to dismiss an employee where they have created a risk to their own and others safety by attending for work affected by drugs or alcohol. In Sam Chisholm v Coates Hire Operations Pty Limited  FWC 3653, the Commission found that Mr Chrisholm’s employment was validly terminated after he damaged a Coates vehicle and recorded a positive drug and alcohol test result. Similarly, in Colin Wright v AGL Loy Yang Pty Ltd  FWC 1941, the Commission found that Mr Wright’s employment was validly terminated after he smoked synthetic cannabis on his journey home from work, despite Loy Yang previously paying for Mr Wright to attend a drug and alcohol rehabilitation program.
These decisions emphasise a number of points:
- the degree to which a decision to terminate is considered ‘harsh, unjust or unreasonable’ appears to depend in part on the extent to which safety considerations in that industry are a real and present concern. For example, in high risks workplaces like mining, the underlying safety rationale for a tough approach on drug and alcohol policy breaches seems to be more readily accepted by the Commission. We think that this underlying safety rationale is equally applicable to the agricultural industry given the inherent safety risks associated with work in this industry; and
- employers must have clear, concise and logical policies which set objective standards of conduct for employees and clear consequences where those standards are not met. For example, if an alcohol and drugs policy states that rehabilitation is the appropriate remedy for a breach of the policies, an employer should not to use the policy as a justification for dismissing the employee without first having given the employee the benefit of rehabilitation services.