The Federal Government requirements for Principal Contractors to have a comprehensive policy for managing drug and alcohol issues as part of the Building Code 2013 commence from 16 October 2015.
The new requirements are modeled on those that previously applied under the Victorian Construction Code, with Fair Work Building and Construction (FWBC) responsible for monitoring compliance with the Building Code.
To meet the requirements of the Victorian Construction Code Principal Contractors were required to have in place drug and alcohol testing policies that provided for random and for cause testing. The Victorian Code also required that Principal Contractors’ policies would:
- provide that a person who returns a positive result would automatically be deemed not to be fit for work; and
- outline how a person who returns a positive result will be prevented from performing work until they can prove they are fit to return to the worksite and other processes that will apply in the event of a positive test or deemed positive (i.e. a failure to submit to a test);
The CFMEU recently publicised that the Building Industry Group of Unions (i.e. CFMEU, ETU, PETU, AMWU) were trialling a Drug and Alcohol Management Plan (DAMP) on a project at the Epworth Hospital Waurn Ponds site.
It is worth noting that the current version of the DAMP has been amended, moving away from a “blanket testing” model that was found infeasible by the Australian Government in its Regulatory Impact Statement (RIS) to a random testing model conducted on a monthly level with the number of test to be conducted consistent with the former Victorian Government Code.
Whilst Master Builders welcomes the continued evolution of the DAMP, there remain a number of serious flaws with the policy that appear to leave any contractor who adopts it in breach of the new requirements under the Building Code 2013. These relate primarily to the retention of subjective impairment testing in the DAMP – which is ironic, given the CFMEU’s previously long-held policy position against drug and alcohol testing was prefaced on its view that “you can’t test for impairment”.
Specifically, there are two significant features of the BIG DAMP that remain inconsistent with the requirements of the Building Code 2013.
Firstly, the BIG DAMP provides that where a worker tests positive for alcohol or drugs that a management representative and an employee representative, referred to as an ‘impairment officer’, will use an impairment checklist to make a judgment as to whether the person is fit to continue working. This means that a person that tests positive for drugs could potentially remain on site despite failing the drug test. This is clearly inconsistent with the requirements detailed above.
Secondly, the BIG DAMP also further provides that the results of drug tests will be given to the employee who tests positive in a sealed envelope and that the employer will not be entitled to know the test results.
The Building Code requirements for drug and alcohol policies require Principal Contractors to address how workers who attend for work affected by drugs or alcohol can be counselled and assisted, apart from any disciplinary process that might apply.
Principal Contractors policies that do not align the Code expectations will be required to explain, to the satisfaction of Fair Work Building and Construction (FWBC), why their proposal nevertheless meets the objectives of the Guidelines.
Master Builders suggests that the adoption of the current iteration of the BIG DAMP by contractors will be unlikely to satisfy the Building Code requirements as detailed above.
Building Code requirements aside, Master Builders has very strong concerns about the BIG DAMP. Any employer that adopts the unions’ policy would be potentially seriously exposing their organisations, both civilly and criminally. The idea that an employer would, for example, have in place a policy that leaves them in the dark on the test results would leave the employer seriously open to condemnation from the coroner in the event of an incident where drug usage was suspected to be a causative factor.
Master Builders strongly recommends that members should have their own drug and alcohol policies and that these policies should ensure that the employer retains control over the testing and the disciplinary processes.
Master Builders recommends the following template as a good starting point.