Safety Implementation Needs Should be Fair and Transparent

In a recent and relatively unique decision, the Fair Work Commission has rejected a major NSW utility's attempt to introduce more stringent alcohol restrictions for its workforce, largely based around the Commission's concerns that management sought to introduce policy changes based upon a highly selective internal policy review. Further, the Commission expressed concern that the utility sought to increase disciplinary outcomes for workers under the policy but failed to alert the relevant unions to these changes during the consultation process.

A NSW electricity supplier with a workforce exceeding 2,500 staff had sought assistance from Fair Work to arbitrate a safety dispute with several unions. Endeavour was seeking to reduce blood alcohol concentration (BAC) cut-off levels, identified through random testing, to zero (0.0%) from current company policy levels (0.02% for roles identified as high risk and 0.05% for all other employees).

The company's Alcohol and Other Drugs Procedure (AODP) had been finalised in March 2018, following a series of arbitrated FWC decisions dating back to 2013. The current procedure was to have been rolled over for a further three years, only for a series of changes being sought by Endeavour following an internal review.

The unions involved in the dispute argued that the proposed changes were inconsistent with prior arbitration between the parties, included unreasonable directions and that Endeavour had failed to consider alternate options. For example, the Deputy President said that their "steadfast" rejection of 'blended' urine/oral random testing for drugs was "more about philosophical objections . . . than practical, common-sense solutions". "Moreover, the unions' position is inherently inconsistent, as it accepts urine testing for post-incident pre-employment testing and confirmatory testing," he continued.

It was also noted that the internal policy review was flawed (for example, claims that Endeavour was trying to establish consistency with other competitors was found to be incorrect) or based upon false assumptions (such as claiming field workers were concerned with higher BAC cut-offs for non-field staff).

The deputy president saved his sharpest barbs for Endeavour's HR and injury management managers, however, describing the quality and "selective analysis" of the latter's review to be "in some respects, simply wrong".

The Deputy President also raised an issue with Endeavour's attempt to alter certain disciplinary outcomes via the new policy yet consistently failing to highlight the measures to unions during several consultation presentations. "I am also troubled by the removal of certain processes for dealing with . . . a first breach of the procedure by a warning or counselling and its replacement by the words: 'Any breach, other than one involving prescription or over the counter medication used consistent with direction would be serious misconduct, by definition'.

Ultimately, the Commission could not be persuaded that Endeavour had established any reasonable basis for changing its BAC cut-off levels to 0.00% for all workers, and determined that the prevailing status quo would prevail.

Endeavour Energy Network Management Pty Ltd vs Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; The Association of Professional Engineers, Scientists and Managers, Australia. (C2019/3115)

The Commission was, however, persuaded largely due to expert evidence that a 50/50 'blended' approach to alcohol and drug testing "will have a useful and material impact".

For queries about reviewing or implementing safety systems or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.