Deputy President Sams of the Fair Work Commission (FWC) has held that drug and alcohol testing does not need to be considered when assessing whether an enterprise agreement satisfies the “better off overall test” (BOOT) under the Fair Work Act 2009 (FW Act). This is because it is best characterised as a reasonable and lawful direction issued by the employer to protect the safety of its employees, patrons and visitors.
Implications for employers
This decision suggests that drug and alcohol testing procedures may be included in enterprise agreements without danger of the enterprise agreement being judged not to satisfy the BOOT or being found to detract from the Nationals Employment Standard (NES) under the FW Act.
Background: relevant law
Under Part 2-2 of the FW Act, all employees subject to the FW Act are entitled to minimum personal leave entitlements under the NES.
Under Part 2-4 of the FW Act, an employer and employees can make an enterprise agreement which will set the minimum terms and conditions of employment for the relevant employees.
An enterprise agreement will not be effective unless and until approved by the FWC. Among other things, in assessing an enterprise agreement for approval, the FWC must consider whether a proposed enterprise agreement leaves the employees “better off overall”.
Rooty Hill RSL (RSL) submitted an application to the FWC the approval of a new single enterprise agreement (Agreement) to apply to most employees engaged by the RSL. The RSL sought to include the following provisions in the Agreement:
37.4 Subject to clause 37.5, if the Employer suspects on reasonable grounds that an employee has presented for their shift impaired by the use of alcohol, non-prescribed drugs or any controlled or illicit substance, the employee agrees to participate in an independent drug and alcohol test conducted in accordance with the Employer’s Drug and Alcohol Testing Policy, as amended from time to time. Drug and alcohol testing for the purpose of this clause will be conducted by taking a sample of the employee’s saliva.
37.5 The Employer can only request an employee to participate in a drug and alcohol test if this requirement to participate in a test has been approved by the Employer’s Human Resources Department, or other person nominated by the Employer’s Human Resources Department.
37.6 If a drug and alcohol test confirms the employee is impaired by the use of alcohol, non-prescribed drugs or any controlled or illicit substance while at work the employee may be summarily dismissed.
The RSL argued that these provisions were designed to ensure the safety of employees, guests and visitors to the RSL who could be at risk if exposed to employees who were impaired by drugs or alcohol.
The relevant union, United Voice, argued that the Agreement did not pass the BOOT because the inclusion of the drug and alcohol testing clauses meant that the Agreement detracted from the personal leave entitlement contained in the NES.
Deputy President Sams found in favour of the RSL, holding that:
although employee drug and alcohol testing procedures are typically contractual in nature and sit outside the terms of industrial instruments, it was permissible for enterprise agreements to contain a term which deals with drug and alcohol testing for employees;
drug and alcohol testing is not an issue relevant to assessing the BOOT. Rather, testing is best characterised as a reasonable and lawful direction of the employer to protect the safety of its employees, patrons and visitors;
inclusion of the drug and alcohol testing clauses did not detract from the NES. This is because personal leave entitlements under the NES arose from an employee’s own assessment, or their doctor’s assessment, of their fitness to work. They did not arise from situations where an employer sends an employee home for attending work impaired by drugs and alcohol;
encroachment of individual privacy by way of drug and alcohol testing did not detract from the NES. Drug and alcohol testing was warranted because testing is “a reasonable and legitimate employer response to the risk to safety posed by employee drug use”. Further, the RSL had been sensitive to privacy concerns in that:
testing was not random and could only be undertaken if the RSL suspected on reasonable grounds that an employee has turned up to their shift impaired by drugs or alcohol;
the proposed test utilised the least invasive method of testing possible (saliva as opposed to urine); and
all testing had to be approved by the RSL human resources department. This minimised the “rogue or over-zealous” use of the procedure.
If anything, the Deputy President held that the RSL’s drug and alcohol testing procedure might even be considered a benefit for BOOT purposes. This was because it equated to the employer “taking reasonable and practicable steps to ensure employees’ safety”.
Rooty Hill RSL Club Enterprise Agreement  FWCFB 2191