Andrew Douglas: All right, I want to go onto the drug and alcohol, ’cause this is the major discussion for today. Perhaps Tom, this is the Sydney International Container Terminals case in Hancock. What I should say is, this is a full bench decision, but it shows far too commonly that our Fair Work Commission doesn’t understand much about safety law. And we’ll come and talk about that afterwards. Maybe if you can take us through the facts and we’ll show where the gap is.

Tom Daly: So the employee worked at a wharf 30 minutes before his shift, he has consumed a glass of wine and been involved in an accident sometime later. There was understandably drug and alcohol testing done and he’s blown a 0.017, which was over the blood alcohol policy, which was for 0.00. However, the catch is that previously the company had a blood alcohol policy of 0.02, which was then changed to 0.00. However, this was sort of somewhat communicated to the employees via an email, like it was sent to them in an email.

Andrew Douglas: Yes, it was for information.

Tom Daly: Yeah.

Andrew Douglas: This is the change that’s happened.

Tom Daly: And the employee’s basically said, “I didn’t know anything about that.”

Andrew Douglas: Didn’t have a computer.

Tom Daly: Yeah.

Andrew Douglas: No evidence that he’d seen it. And not surprisingly, the Fair Work Commission said, “Look, under those circumstances, it’s not a valid reason for termination.” That’s really, that’s simple, isn’t it?

Tom Daly: Yeah, you didn’t tell him, he didn’t know.

Andrew Douglas: Yeah. Unfortunately, what’s missed out of this is under safety law, you change drug and alcohol policy, which relates to safety. There is an obligation to consult and that, and in all the leading cases around drug and alcohol policy, the usual argument is the failure to consult is the critical failure. So here he didn’t know about it, that’s pretty bad. But even then, failure to consult is the major reason why this case should’ve been chucked out, ’cause it’s just a breach of safety law. Anyway, interesting. And the reason it’s the main topic is when you do go to change drug and alcohol policies, drug and alcohol policies have three elements that are key. One is they must be evidence-based. Why are you-

Tom Daly: Saying 0.0.

Andrew Douglas: Yeah, why are you saying 0.0? Why are you saying random testing? And the Air New Zealand case, which is the leading case in this area, I know it’s not an Australian case, talks about that calibration based on risk and what you’re doing and why you’re doing it. And then basing it on relevant standards that say what you can do. Okay, so that’s number one. Number two is-

Tom Daly: Fair enough in this case as well.

Andrew Douglas: Yeah, yeah.

Tom Daly: High risk environment.

Andrew Douglas: High risk environment, yeah. Number two is, okay, you put out, set out the evidence, it needs to be not merely disciplinary, it must be educative and supportive. So you can’t just go around terminating people. What are the alternatives? There’s got to be an inquiry space. Nothing said about this policy in respect of that.

Tom Daly: No, they didn’t do any training or anything either.

Andrew Douglas: Yeah, no training at all, no support that sits around. And finally, yeah, there’s got to be a detailed consultation process that goes through. And normally a union, which is a surprising silent part of the union in this, would be saying, “Well look, we won’t consult on this. We are representative, we should have been consulted.”

So I think what it shows us clearly is this, drug and alcohol policies are great things. Okay, they’re really good, we should have them. But reflect a little bit before you start. Engage with employees before you start drafting them or start amending them, awards, say when you’re introducing a major change that may lead to the termination of people’s employment.

Once a decision is made, you shouldn’t consult as the impact safety says, “Before the decision is made, you must consult.” So there’s two layers of consultation. Prior to introducing it, making sure it’s the best version. That consulting doesn’t mean reach agreement, it just means consulted upon.

Line in the sand, okay, we’ve consulted, here it is, this is what the agreement is, award and it’s arguable whether the award applies. But if it’s the award, you’ve then got to make sure that you mitigate the impact upon people as to what, how it will affect them. And that means you go back out and you retrain people and make sure they’re competent and understand, but you have appropriate rehabilitative resources and support around them for people who have problems with it. So that’s what drug and alcohol policies are required to do in Australia. And in the case we just gave you, it fell well short of that. You ready for the case study, Tom?

Tom Daly: Yep.

Andrew Douglas: Okay. So Tom’s going to read out the case study.

Tom Daly: Okay, so, “Graham was a maintenance worker at Big Brick Ltd. His work did not involve high risk areas such as furnaces. Rather, he maintained the air conditioning and filtration systems at the plant. He had been raising concerns about the planned maintenance system as he felt it was unsafe for him to work alone on elevated structures while performing maintenance tasks. Marge was the operations manager. She directed Graham to continue working and stop complaining.

Marge had recently attended a course in Melbourne on drugs and alcohol in the workplace. Big Brick Ltd. had a risk-based, high risk, risk-based approach to alcohol. Some areas operated under a zero tolerance policy, while others had a threshold of 0.01. All plant operators and workers in high risk areas were subject to the zero tolerance policy, which included provisions for random testing. Upon returning from the conference, Marge issued a memo implementing a zero tolerance policy across the entire plant along with random alcohol testing.

The following Monday, Dave, the site Health and Safety and Environment officer approached Graham and directed him to undergo a random alcohol test. Graham refused. Dave explained that Marge had conducted a random selection process and Graham had been chosen. Graham responded that this was “Total bullshit.”” Am I allowed to say that?

Andrew Douglas: Yeah, you’ve done it now.

Tom Daly: “No random testing had occurred in the last two years and he questioned the process used for the selection and why it suddenly applied to him. Dave didn’t have an answer. Dave referred Graham to Marge who reiterated that Graham must submit to an alcohol test and questioned why he would refuse if he had nothing to hide. Graham asked how the selection was made, but Marge only said it was random and refused to. She stated that it was part of the new policy.

Graham admitted to having a few, had a few beers the night before, but believed he would test zero. However, he felt he was being unfairly targeted and refused again at the time he was directed to test. He had not seen Marge’s memo and did not understand the rationale for the sudden change. Marge summarily dismissed Graham.”

Andrew Douglas: Okay, there we go, so the first question is, did Marge and Big Brick breach safety laws, and if so, how is there a possible safety discrimination claim? So

Tom Daly: Well, it’s very much similar to the, there’s a lot of similarities to the previous case we’ve just done.

Andrew Douglas: The issue here is it’s a consultation breach.

Tom Daly: Yeah.

Andrew Douglas: Without a doubt. Which isn’t a big number when you get it wrong. But it’s quite clearly a breach. The real one here is that if you treat someone adversely under all health and safety board, whether it’s WHS or OHS in Victoria and it has the effect of discriminating as a result of that breach, then there is a claim that can be made in Victoria. It’s up to $250,000.

Tom Daly: So you’re referring to him raising concerns at the start? He raised concerns and was told to continue working and stop complaining.

Andrew Douglas: Yeah, and so if you look at where we are, Tom, in this case, he was randomly chosen, but nobody will show the random method. The problems arose, his selection occurred. A random breath test that hadn’t been carried out for two years. It’s a reverse onus provision. It would be very hard for Marge to say who was unable to prove the randomness of what she was doing, that the purpose she did it for was, “Well, I don’t know, I just did a random test and he refused to comply with lawful and reasonable direction.”

The short answer is it’s almost compelling that he was selected for a reason. Whether he passed or failed was a different issue. We don’t have that evidence. Maybe she smelled alcohol when he walked past, I don’t know. We don’t know it, all we know though, is on the basis of those facts, there is a discrimination claim running at the business and that’s a substantial claim.

Second question is, was there an obligation to consult under the major change clause of the award given the risk of termination of employment? As I said, Tom, award changes are really major change. Really looks towards restructures or redevelopment of a business, which could lead to more than one or two people losing their job. Okay, and at that stage, there’s an obligation to consult. The obligation to consult is usually to identify in writing what the change is going to be to make sure the relevant people receive that, and then to eliminate or mitigate the impact upon the people concerned.

So it’s post dated, okay, I make a decision to do it, then I must consult safety law before I make a decision. I must consult, they fit together. But one of the provisions in all major change clauses is that if it could lead to the termination of employment and here could lead to the termination of a number of people, ’cause it’s quite a significant change that’s occurred. So I suspect the award does apply under these cases. And even if it didn’t, you’d have to be stupid not to consult about it, wouldn’t you?

Tom Daly: Yeah.

Andrew Douglas: So, I consult to work out what is the right change. I make the change. Why wouldn’t I take the next step if there are people I care about want to make safe? Remember the three elements you’ve got to have in a drug and alcohol, one of theme’s educative. How am I going to educate these people? How am I going to make them feel safe to come forward If they do have a drug and alcohol problem? I’m not relying on the policy to terminate, I’m relying on the policy to make the workplace safe.

And that includes for people with disabilities. And can I just say there is a number of cases that say alcoholism or drug addiction is a form of disability which is recognised at the law. So I think that’s interesting. I might be the only one who does. Does Graham have a strong claim for unfair dismissal? What do you think?

Tom Daly: I mean, clearly he’s been dismissed. So there’s that aspect ticked.

Andrew Douglas: Yeah.

Tom Daly: And then, the dismissal must be harsh.

Andrew Douglas: So it must be valid first. So is there a valid reason for termination? He breached the policy. The answer is I think they’d struggle to get over the line with valid, but undoubtedly it’s not reasonable.

Tom Daly: Mm.

Andrew Douglas: In the sense that it hasn’t been consulted upon. It’s not just because it doesn’t comply with law and it’s harsh in the circumstance. So yeah, he’s going to win on every ground and then he is going to win on the procedural fairness, general provision that exists as well.

Tom Daly: Yeah.

Andrew Douglas: So he’s got a good claim. What do you reckon about general protections?

Tom Daly: I hadn’t thought about this, but you just mentioned the alcohol, the dependence on alcohol can be considered a…

Andrew Douglas: Well.

Tom Daly: I don’t know if that’s officially-

Andrew Douglas: No, no, look, you might get up, that’s a really good point. But we don’t know whether he had an alcohol based disability. The real question is he has raised the safety concern.

Tom Daly: Yeah.

Andrew Douglas: And if substantial reasons for his termination is the raising of that issue, and because of the evidence showing there’s no proper basis under the drug and alcohol policy and the lack of randomness about the selection, the failure to do random testing before, I think they’d be in strife.

Tom Daly: Yeah.

Andrew Douglas: This is one you’d have to settle. All right, well, mate, thanks for coming along. You always get dobbed in at the last minute. You do such a good job, I’m very impressed.

Tom Daly: That’s all.

Andrew Douglas: Thanks to Nina and Kim, and Monnette. Okay guys, see you later, cheers.