A full Federal Court has emphasised the important role drug and alcohol testing plays in ensuring workplace safety, in rejecting the CFMEU's bid to ban testing on a major Victorian motorway upgrade.
The union last year objected to the tests, arguing they were not prescribed in the 1993 Victorian Building Industry and Other Drugs Policy, which was incorporated into the relevant enterprise agreements.
A Fair Work Australia Commissioner found in the CFMEU's favour, but project principal contractor Thiess Pty Ltd, and subcontractor Wagstaff Piling Pty Ltd, successfully appealed against the decision to an FWA full bench.
In an October 2011 ruling, the bench found that while the 20-year-old policy was "silent" on compulsory workplace drug and alcohol testing, which was rare in the early 1990s, it did not prohibit it.
The union appealed, and told Federal Court Justices Robert Buchanan, Geoffrey Flick and Anna Katzmann the rarity of drug and alcohol testing in 1993 was irrelevant, and the FWA full bench fell into jurisdictional error in considering it.
It also argued there was no evidence that random drug and alcohol tests would improve worker safety on the project.
But Justices Buchanan and Katzmann found that while the 1993 policy did not address testing, it strictly forbade people who were under the influence of drugs and alcohol from working on building sites.
"Every employer also owes a duty of care to its employees to take reasonable care [under the Victorian OHS Act] for their safety," they said, in dismissing the union's application yesterday.
"The policy acknowledged the risks to safety posed by employees affected by drugs or alcohol at a building site.
"In those circumstances, at least, an employer who took the precaution of first ascertaining whether drugs or alcohol have been imbibed as a step towards protecting the safety of employees at the workplace may be seen to be attending to its own obligations."
In a separate decision, Justice Flick also rejected the appeal.
Testing regimes vital and reasonable: employers
The Ai Group welcomed the decision, saying it was vital in helping employers and managers comply with their "onerous" OHS obligations.
"It is vital that employers be permitted to implement fair and reasonable safety policies in hazardous work environments which are aimed at protecting workers, members of the public and other persons, like the policy implemented by Thiess and its subcontractors on the [motorway project]," Ai Group chief executive Innes Willox said.
"In hazardous work environments, nowadays there is a wide acceptance in Australia and overseas that an appropriately structured and implemented alcohol and drug testing regime is an important and reasonable control mechanism to address the substantial risk of employees working while under the influence of alcohol or drugs."
