Almost a decade ago the USU raised the issue with the NSW Local Government Employer’s Association (LGNSW) of the need to negotiate, trial and adopt a recommended Industry policy and procedure for Drug and Alcohol Testing for NSW Councils.
Several Councils in the Hunter Region and one outside of the Hunter participated in the negotiations and trial.
Those Councils in the Hunter who participated were Newcastle City Council, Port Stephens Council, Maitland Council and Muswellbrook Council.
USU participation and Training
USU officials including the Northern Manager and USU delegates participated in regular negotiations with Industrial Officers from LGNSW, HR Officers from the participating Councils and representatives from the other 2 Local Government Unions before, during and after the six month initial trial.
Staff surveys regarding the trial by the participating Councils were conducted, with feedback being taken into consideration by the working party.
Some initial concerns were able to be allayed as a result of some amendments made to the then draft policy and procedure documents following the trial and feedback received.
The USU had its participating Officials trained and accredited as drug testers to ensure that they would fully understand the testing procedures including the chain of custody of samples taken from testing and to ensure that they could answer any questions about the testing process.
The NSW IRC also assisted in reaching final consensus on an Industry recommended policy and procedure.
The agreed documents were then released and recommended by both the Industry Unions and the Employer’s association (LGNSW) and this is still the case.
The recommended policy and procedure was worded so well that it has not seen any disputation when followed correctly and as intended.
Should testing legislation change or new technology become available, the policy and or procedure may require updating.
Rehabilitation and Support
The policy and procedure are focused on rehabilitation and support as the main priority more so than on disciplinary action.
Employees who believe that they may have a substance abuse issue regarding alcohol and/or drugs who seek help are provided support.
The ability to test staff at work is based upon the following;
- Reasonable Suspicion Testing. The policy and procedure provides a checklist of signs and behaviours that can be used to request testing.
- Post Incident Testing. Where an accident occurs or a reported near miss of a serious nature is made, there are guidelines on when testing can be requested. Note: the trial led to some amendments to the policy and procedure regarding which type of incidents require testing and which don’t. As minor incidents may not require testing to be conducted.
- Random Testing.
- Limited Targeted Testing. This trigger for testing is to our knowledge not one that is included in other Industry policies and procedures but it is the one when triggered by a confirmed positive test, that then requires the person who confirmed positive test result or who has refused testing to make a decision to either seek help with their substance issue, as they face the reality of targeted testing for a first confirmed positive or any refusal to be tested, of a six month targeted testing period where they can be tested anytime at work and if during that period they have another confirmed positive test result or refuse testing they face another 2 years of targeted testing.
After almost a decade since the Industry Drug and Alcohol Policy and Procedure was negotiated, it is positive to note that there have been people who have been tested as positive for alcohol and or drugs at work who have taken the opportunity under the policy and procedure to seek help and who have overcome their addictions. Unfortunately there have been some who chose not to take the opportunity to deal with their addiction and who either resigned rather than face further targeted testing or who eventually had their employment terminated as a result of continued confirmed positive tests or refusal to be tested.
Disciplinary procedures
When we negotiated and trialled the Industry Policy and Procedure, we deliberately didn’t include a process to deal with people who were proven to have brought illicit drugs into the workplace and worse still to deal with those who were selling or providing illicit drugs to others in the workplace.
That is because the disciplinary procedures in the award in clause 37 adequately deal with instances such as this, as they constitute serious misconduct.
It should also be understood that this sort of behaviour would also be in breach of the NSW Local Government Model Code of Conduct under sections 3.1 and 3.2 in General Conduct and section 3.12 in Work Health and Safety.
The USU does not believe that Local Government has any higher prevalence of the misuse of drugs and or alcohol than any other industry.
Illicit Drugs in the workplace
The USU is aware though that the use of illicit drugs in particular has increased significantly in society as a whole and that the use of some of the new forms of illicit drugs can often result in serious health side effects, which can result in mental health issues, unpredictable and aggressive behaviour and poor decision making and often significant levels of unexplained absenteeism.
The side effects of some of these illicit substances can result in a very serious risk to health and safety in the workplace and not just to those who are affected by drugs and or alcohol while at work but those around them.
Even regular use of marijuana which many people view as a natural and non-harmful drug can result in some people suffering from schizophrenia and other mental health problems.
As a result, for example, if you suspected or knew that a person that you were working with may have been under the influence of illicit drugs and or alcohol at work and that person’s actions resulted in your injury or possible death or the injury or death of someone else and it could be proven that you knew, would you or the person under the influence of illicit drugs and or alcohol be covered by workers compensation if injured at work or if it involves a traffic accident by third party insurance, even if in a work vehicle?
Legal advice
The USU sought a legal opinion in regards to this matter and has received advice that in relation to the impacts of drug and or alcohol use on compensation entitlements (including injury associated with a vehicle);
- Under workers compensation “serious and wilful misconduct” can disentitle someone to entitlements under legislation.
- Under motor accident legislation a court can apply a discount to any verdict for “contributory negligence”.
We strongly advise our USU members to refuse to expose themselves to risk in the workplace if you legitimately suspect or know that a fellow worker or workers are under the influence of illicit drugs and or alcohol.
Report your concerns
We would advise our members to report their concerns asap just as they should any other workplace risk to health and safety.
For those of us who have been involved in workplaces such as Local Government for several decades, we can remember the stigma and pressure felt by people who informed on their fellow work colleagues in the past, but times have changed.
It should not be seen as dobbing when you raise concerns of workplace health and safety any more than it should if you report other bad behaviour such as bullying and harassment, theft or fraud, etc.
There is no excuse for people bringing illicit substances to work and worse still to sell or make it available to others at work.
We have seen good productive workers and their families suffer when they have been introduced to substances such as ice at work, which resulted in them becoming addicted even after one initial use, due to the extremely addictive nature of drugs like ice and then we have heard of their work colleagues witnessing what is often a rapid decline in their appearance, personality and their physical and mental health often resulting in the destruction of their family and personal relationships.
I doubt if we have any members who have not had personally witnessed or experienced the negative and destructive results of their family or friends who have substance abuse issues.
The USU will take a hard line when dealing with cases where we believe a member has been involved in the selling or providing of illicit drugs in the workplace and strongly advises its members not to bring these substances to work or to use them at work.
We will support our members who report such instances and support treating them in a confidential manner as long as they are not made for vexatious purposes and they have a reasonable belief that their allegations are true.
If a member facing allegations lies to us or if we see evidence to prove their guilt beyond a reasonable doubt, we reserve the right to walk away and to withdraw our representation.
The Policy and Procedure can be downloaded on our Resources page here.
